First off, it’s important for employers who have adopted “at-will” termination policies to know what exceptions to these policies the states in which they do business may or may not allow. For example, all states recognize that an employer cannot fire an employee for refusal to commit a crime. And most states recognize three main exceptions to “at-will” termination, namely the public policy exception, the implied contract exemption and the covenant of good faith and fair dealing exemption. Being well versed as to what constitutes an exception will avoid problems down the line should any employee---including those with emotional issues---be let go.
Avoid careless comments:
An important part of leadership coaching is for managers and employers to show compassion and make reasonable attempts to accommodate employees who have emotional issues. That being said, if an employee is not contributing to the company as they should, and documented attempts have been made to accommodate showings of emotion in the workplace---but the employee’s behavior is proving stressful to co-workers--- then termination should be considered. However, due to the fact that the Americans with Disabilities Act protects employees from being fired solely because of a mental illness---a condition which a doctor may have diagnosed in the employee with emotional issues---talking too much about those issues should be avoided, as it may imply that the employee was terminated based on emotional instead of performance issues. Bottom line, managers and employers need to be careful what they say in order to avoid litigation for wrongful termination.
Seek legal counsel before termination:
Due to the complicated nature of employment law---and the number of employee vs. employer lawsuits that are now flooding the courts---those who are considering firing an employee with emotional issues should first seek the counsel of an attorney that specializes in employment law. While hiring an attorney may seem unnecessary and costly, in the long run it could save the company a substantial amount of money and legal headaches.
Prepare a generous severance package:
Offering a generous severance package to the person being fired may seem inappropriate. However, it can help to make the process go smoother for both parties. This is especially true for an employee with emotional issues which being “let go” will most likely magnify. A generous severance of both salary and benefits will be seen as a thoughtful act on the part of the employer. After all, the employee has devoted some time and effort to the job and is not altogether undeserving. However, the severance package should not be given unconditionally. In order to receive the benefits, the employee should be required to sign a general release, giving up their right to sue the company. A competent attorney will be invaluable in making sure that all is done correctly.
Eliminate the position prior to termination:
To make it legally and abundantly clear that an employee was not fired because of poor performance or emotional issues---both of which could be challenged in a subsequent lawsuit---a good strategy is to eliminate the employee’s position altogether. Posting the new job position---which should contain as few of the employee’s responsibilities as possible---before letting the employee go, should reinforce this act. Employees have little recourse for having been let go from a position that is no longer needed.
