|August 17, 2013|
Previously published on August 14, 2013
As a management employment lawyer, I am often asked to provide legal advice to a Virginia company as to a termination decision. If the company decides to terminate an employee, we typically then discuss how the decision will be communicated, including whether the company should notify the employee in writing.
As a general proposition, a Virginia employer is not legally obligated to provide the employee with written notice of a termination decision. Some employers, however, prefer to do so. In addition, sometimes the employee will not be returning to the employer's premises—in such a case, a termination letter is necessary. The question then becomes how much information the employer should include. This article provides some practical recommendations.
1. You should never write a termination (or any other) communication when you are upset or angry. In the high profile criminal prosecution of George Zimmerman in the Trayvon Martin case, there were also personnel issues that garnered publicity. Most notably, on Thursday July 11, 2013 (as the jury deliberated in the criminal case), a managing director in the Florida State Attorney's Office had a six-page single-spaced termination letter hand-delivered to Ben Kruidbos, who had been serving as the Director of Information Technology. (Kruidbos had surmised that the State had not disclosed certain electronic evidence to the defense. He obtained his own counsel for advice who subsequently informed the defense of the evidence. This led to a pre-trial hearing in which Kruidbos was compelled to testify.) After recounting the chronology and facts as to Kruidbos' performance from the State's perspective, the termination letter included the following language:
Your egregious lack of regard for the sensitive nature of the information handled by this office is completely abhorrent. You have proven to be completely untrustworthy. Because of your deliberate, willful, and unscrupulous actions, you can never again be trusted to step foot in this office. You have left us with no choice but to terminate your employment.
Wow! I am not going to opine as to whether or not the State of Florida should have fired Mr. Kruidbos. In my judgment, however, the State should not have gone into such detail or used such an emotional tone that concluded with the words quoted above. Simply stated, it is generally not a good idea to write with such strong emotion.
2. How much detail should an employer include? Another danger with "telling the whole story" is that you might miss a fact or not have all of the facts. It is for these reasons that I generally prefer a much more succinct approach. Bear in mind also that the employee should be well aware of the reason for his termination. To this end, I prefer language along these lines:
As you know and as we have discussed, we have determined that you have engaged in conduct in violation of company policy. Accordingly, we have decided to terminate your employment for performance reasons effective immediately. Thank you for your service. We wish you the best.
Some may argue that this language is too vague. I would rather see language like this, however, as opposed to lengthy or detailed letters that are more susceptible to errors.
3. If you say it, it must be true. While it may be stating the obvious, if you are going to articulate a fact or reason supporting the termination decision, it must be true. As a classic example, do not characterize a termination as a "layoff" or "restructuring," if the real reason is performance. In addition, if there are other persons in the organization who are memorializing the termination decision, make sure that person knows the reason(s) for the termination and how it will be characterized or memorialized. For example, some companies have internal forms that they use to "code" the reason for termination. In addition, employers are often asked to complete forms for the Virginia Employment Commission as to the reason for termination. The company must be consistent and accurate in memorializing the termination decision.
4. But Todd, who writes letters anymore? If you are not able to convey the decision in person, then the question arises as to how to convey the termination decision. In such a case, I remain a fan of an old-fashioned letter, by regular U.S. Mail, to the employee's last known address. Conversely, I would not recommend notifying the employee of his termination by text message. If you have a personal email address for the employee, I am okay with a short email that attaches the letter (which will also be mailed).
In sum, employers should not feel compelled to provide a terminated employee with a letter. If you do so, you must be exceptionally careful as to the content of any such communication, as well as the content of any other communications by others within the company.