Terminating an employee is painful for everyone — from the restaurant owner down to the dishwasher. But if you go about it the wrong way, you may find yourself in pain for a long time. So take the time to follow procedures that are both legal and humane, and that protect the morale of your remaining workers.

"All terminations should be viewed as a potential for liability and even a possible lawsuit. If you view it that way, you will be careful," says Ira Michael Shepard, a labor and employment-law attorney with Schmeltzer, Aptaker & Shepard in Washington DC.

Laying the groundwork

Legal and employment experts say it is crucial that operators lay the proper groundwork before a termination situation arises. They recommend checking to make sure there are no land mines hidden in your employee handbook — sections that could be interpreted by a court to be a contract of employment.

The key part of the employee handbook is the employment-at-will statement, which spells out that the worker can terminate employment at any time or be terminated at any time, says G. Roger King, a partner in employment relations at Jones, Day, Reavis & Pogue in Columbus, Ohio.

Do not have statements in your restaurant's employee handbook that say employees will be terminated only for good cause, and do not tell new hires that they will be employed for as long as they perform satisfactorily — essentially a promise of lifetime employment. Avoid phrases like "permanent employee."

"I've seen bad handbooks, sloppy documents that have caused the handbook to become a contract" — sometimes a very expensive contract, says King.

Establish clear position descriptions, institute a system of evaluating job performances and use consistent discipline procedures, so that those basics will all be in place when it comes time to terminate an employee. That way you can show that the employee knew what was expected of him or her and you will be able to spell out where the individual failed to meet those expectations.

Once the decision has been made to terminate an employee, operators must consider whether the employee is a member of a class of individuals protected on account of race, sex, religion, national origin, age or disability, Shepard advises, and "be especially sure the termination is for cause — for a good reason — and [that] there is supporting documentation."

If the person is not otherwise protected, "ask yourself, have you given that person all of the advantages that you promised and have you treated the person fairly? If no promises were made and the person was given no job security, there's nothing for you to be held to, and, in most cases, there will be no legal claim. But if you promised warnings, etc., you've got to adhere to your own procedures," Shepard says.

Statistics presently show that a sexual-harassment lawsuit is probably the biggest threat to employers, according to Shepard. "Make sure that your reason [for termination] is not related at all to anything that could be considered sexual harassment," he says. "For example, if a supervisor is terminating a waitress because she won't go out with him, that's illegal. Avoid even the appearance of harassment."

The right timing

When the moment comes to talk with the staff person who is being terminated, timing is an important factor, according to human-resources-management consultant Lester M. Minsuk, head of Lester M. Minsuk & Associates in East Windsor, New Jersey.

Although circumstances may not give you much flexibility, experts say there are factors to take into account in choosing when to terminate an employee. "You never want to terminate anybody on their birthday, anniversary or right before a holiday. You can do it the day after," says Minsuk. "I would never do it on a Friday. I think the most effective time is Monday or Tuesday, so that by the time the person has to be alone on the weekend there has been time for a lot of thinking, organizing and rationalizing."

When talking with the worker, an operator should focus on concrete examples of poor performance. "It can be quality, quantity, even personality, but it must always be related to performance issues," says Minsuk. "Understand that if people feel discriminated against — even if that is not the intent — they can probably bring some kind of [legal] action. What makes them feel that way? When the person firing them can't tell them why. When the manager says something like, 'I'm not really sure, but it's just not working.'"

Minsuk stresses that operators must be definite. "Say, 'This is the effective date,' whether that is today or two weeks later. The message has to be unequivocal that your employment ceases on such-and-such a date," he says. Then follow up with a description of benefits, such as severance pay and vacation that has been earned but not yet taken. "The whole conversation should not take more than 10 minutes."

This all presupposes that the operator or manager has kept records in the employee's personnel file, "so when the employee is fired, he/she is never hearing the reasons for the first time," says Minsuk. "The warnings don't have to get that formal — just a note that you spoke to Joe about his tardiness. Have Joe sign it. Have it in the file. That way you can cover yourself."

If the individual being fired has access to especially sensitive information or computer files, Minsuk advises that operators terminate the person immediately and give him or her two-weeks'-notice pay. He also recommends that if possible, operators offer the former employee outplacement counseling.

Protecting co-workers' morale

The morale of the remaining employees should be taken into consideration by operators. Treating a departing employee humanely and gently will also help the staff members who remain, says Richard Koonce, a career coach and consultant in Falls Church, Virginia.

"If a person is terminated rashly or abruptly, even if there is cause, it speaks volumes to employees about the employer. The better, the more adroitly you handle the termination, the more productivity you get" from remaining employees, says Koonce.

The person doing the firing also must resist tears or begging from the terminated employee, Minsuk says, or "the word will go out, and you will never be able to fire anyone else."

In addition to being direct and succinct in dismissing an employee, operators should also remain calm during a termination discussion. "Lay out the reason for termination, and do not get into any shouting matches as to what's happening. It has to be done in a very professional setting, devoid of emotion," Koonce says. "I've worked in restaurants, I've seen the high-pressure atmosphere. Managing people in that sort of setting takes emotional maturity — you've got to keep a cool head."

Poor supervisory and communications skills can contribute to morale problems. "It's important to communicate expectations. There's an art to managing in cases where the people are not bound to you by virtue of large salaries. You need to trade on their sense of loyalty, to get them working hard on your behalf," says Koonce.

Minsuk advises operators to immediately call all staff members together and make an announcement about their co-worker's termination. "Explain what has happened. If you want to make it an object lesson, you can, but be sure you're sticking to the facts, not embellishing," he says. "Tell everyone how this will affect them, that responsibilities might be shifted and spread out over the remaining staff. If you expect that to happen, be honest with people."

It will be easier for remaining employees to accept extra work if they know it is temporary and that they will be compensated for overtime, Minsuk adds. "Be sure people don't feel taken advantage of. When you terminate one person, you still want to have a team."

Operators must keep their spirits up

Restaurateurs must also think about themselves, Minsuk says, because those who do the firing will also be affected by having to terminate an employee.

"If a person has the responsibility for an enterprise, that's got to be the primary goal," says Minsuk. "You can't procrastinate. You have a responsibility to yourself and everyone else working there not to allow one bad apple to spoil the whole barrel."

A manager making the difficult decision to dismiss an employee may find it useful to talk to someone outside of the business. "When I do outplacement for the employee, I usually coach the person who is going to do the termination and am available afterwards, so they feel OK about what they did, so they don't feel rotten," says Minsuk. In the end, "you should be able to think, 'I didn't fire you, you did it yourself. I just kept the records.'"

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