February 28, 2013 |

Employee Termination: Hit The Door

By Pamela Mills-Senn

Photo by Josh Keown employee terminationLast year, the week before Christmas, Carmelo Lamotta needed to fire a server. He did not want to wait until after the holidays because then other workers would suffer. “If you keep someone an extra week because of the holidays, business drops because customers do not come in because of the poor customer service,” says Lamotta, who owns LaMotta’s Italian Restaurant & Pizzeria in Fort Myers, Florida. “You hate to let someone go, but here, we are a team. If one player is not playing, the team is not united, and the person brings the rest of the team down.”

Terminating an employee is never easy, but it is necessary when the worker affects others. Lamotta had repeatedly told the server that during slow times she was supposed to learn the menu. She declined, instead opting to stop other servers every time her tables asked her a question. That slowed everyone down, and it caused the better performing servers to neglect their own customers and even lose some tips. “We have a three-strike policy,” Lamotta says, adding that the policy comes as no surprise to employees. “They get the handbook and they know what’s demanded from them.”

Sometimes the decision to terminate an employee is not that clear because it’s hard to tell whether the staffer has a poor attitude or simply does not understand what to do.

It’s the difference between performance and values, says John Mazarakis, chief operating officer for Wilmington, Delaware-based Seasons Pizza. “I like to break it down as not being higher up on the learning curve versus someone not caring what you stand for,” he explains. “If someone is taking the pizza out of the oven slowly, I can’t fire them for that. I can train them. But if someone says, ‘I will not take the pizza out of the oven faster,’ that shows me their values.”

Performance is measurable, Mazarakis says. At the 28-unit Seasons, the person taking phone orders must say, “thank you” to the customer on the phone. Otherwise they get two verbal warnings, and then a written warning.

“The write-up is not reprimanding, it’s an opportunity to learn,” Mazarakis says. “It’s not, ‘Why did you do this?’ but, ‘This is what we want you to say on the phone.’ ”

The third write-up can end up being the exit interview. The manager has the choice of terminating the employee or giving them another chance. If the person is really trying and demonstrates a good attitude, they should be trained more. “I would not fire that person,” Mazarakis says. “You have to be candid with your employees. You have to give them enough chances to redeem themselves.”

You also have to document everything, says Carolyn D. Richmond, a partner in the law firm Fox Rothschild, LLP in New York City. “When I get a call from a client saying ‘Can I fire this person?’ I say ‘send over the personnel files’, and they are inevitably too thin,” says Richmond, who chairs the hospitality practice for the firm. “In a perfect world you have files with performance review forms and disciplinary documents with all the right boxes checked.”

In general, restaurants employ people at will, which means they do not have a contract (as some executives do) and they are not members of a union. With at-will employment, the person can quit any time, and the employer can terminate employment any time for any reason, but it cannot be an illegal reason, such as that the person is in a protected class. Richmond explains that the operator can fire the employee for making a mistake so grave that the restaurant loses $5,000 worth of cheese, but the person might sue the operator and claim they were fired because they were 50 years old or Jewish.

That’s why it helps to document everything. If the manager reprimands the person for mouthing off at a customer, the reprimand should be written, signed by the employee and placed in the file. (Incidentally, no one has to give the employee three tries. You can fire someone the very first time they use foul language to a customer, Richmond says.)

The documentation does not have to be on paper. It could also be an e-mail. “It should not be informal,” says Margaret Parnell Hogan, a partner with the law firm Littler Mendelson. “Write it with the same care as you would write a letter to the employee.” A worker can delete an e-mail, but the messages never really go away.

Just make sure you have a “paper” trail. “Employers think, ‘everyone will believe me, I am an honest businessperson,’ ” says Hogan, who works in the firm’s Denver office. “But jurors like pieces of paper.”

Richmond says the exit interview can be constructive if the person is resigning to take another job. The employer can gather information on how to improve the culture or benefits of the establishment. “It’s different when it’s a termination,” Richmond says. “Really you want to get in, get out.”

At least be honest. “Do not say you are eliminating that position, because they are going to look for a job on Craigslist and they are going to see you posted the job, and they will run to a lawyer,” Richmond says. “Tell them they weren’t right for this job.”

Sign This

When you conduct a performance review or write a warning, the employee has to sign the document. “We want them to acknowledge they’ve been warned and another action will result in termination,” says Carolyn D. Richmond, a partner at the law firm Fox Rothschild, LLP in New York City. “But the employee never wants to sign it.”

Richmond says one of her clients found a solution. The employer would make a big show of how furious he was that the employee didn’t want to sign the form. Finally he would turn over the page and tell the employee to indicate that they object to the bad review or the warning. “He even had a stamp made that said, ‘I object,’ with a line so the employee could sign it.” The employee would sign it, happy to record the dissent.

That’s all the employer needs. “It doesn’t matter that the employee objects,” Richmond says. “They acknowledge that they saw it, they read it, they know they were warned.”

Pamela Mills-Senn a freelancer specializing in writing on topics of interest to all manner of businesses. She is based in Long Beach, California.