My first time firing someone - and I need tips
November 26, 2016 6:59 PM   Subscribe

I am on the board of an organization and I need to fire our executive director. I'm worried about doing it right and would appreciate tips.

"Dave" seems to be unable to do the job, unfortunately. I have documented evidence of our dissatisfaction with his performance in a formal performance review and evidence of failure to achieve the goals of a remediation plan after the performance review. I also have evidence of breach of contract (i.e. contract stated that X must be done as part of the job, and I have a letter from Dave stating that he has not been doing X). We don't believe he's doing anything malicious except to the extent that not doing his job is hurting our profits.

We really can't afford to keep him on any longer than is absolutely necessary, but it is also likely to take us 1-2 months to hire on someone new. Should we give him some number of weeks' notice? We have never had to fire an employee before. Is there any paperwork we need to file or can we just stop paying him? Anything else we are required to provide? I hate to fire someone right before Christmas but he really has left us with no choice. We're going to have to scrape together our pennies that we'll save by firing him to help us pay for a temp person to do part of his job while we hunt for a new candidate. We're holding a board meeting to vote on firing him in a few days. I was planning to propose that we give him basically 1 month notice so that he finishes with us on Jan 1. Is that a bad idea? We have some projects he's involved in that I'd prefer not to have to take on myself or hire someone temporary to deal with, but I can imagine it might be super awkward to keep working with someone who knows they are fired for a reason like this. Am I being crazy? Another board member has expressed concern about possible sabotage or other negative actions if we continue to let him have access to company resources. And it will be kind of a waste of money since he's not doing half the things that we are paying him to do.

In case it's relevant, Dave has a side gig and his job with me is not his only employment.

Help me do the right thing here!
posted by treehorn+bunny to Work & Money (31 answers total) 4 users marked this as a favorite
I don't know about the legal stuff, but his last day should be the day you tell him he's done. Offer him severance if you can, but neither you nor he are going to want him hanging around. At the very least, I guarantee he'll go from doing half the job to none of it. Fire him and walk him out.
posted by Snarl Furillo at 7:06 PM on November 26, 2016 [24 favorites]

A lot of this will depend on where you are. I would seriously advise that your board consult an employment lawyer. Here despite the incompetence you could end up owing a chunk of severance and a lawyer can save you serious money and time.

On a human level, at the ED level I would walk him out that day. The potential harm to the organization is a risk.
posted by warriorqueen at 7:08 PM on November 26, 2016 [13 favorites]

What does Dave's employment contract say about notice? Are you in an at-will state?

Be circumspect in what you say when you meet Dave, and absolutely positively hand him a termination letter in that meeting. This seems like a good model to me. Review the employment contract, particularly with regard to severance pay.

Note that very few people opt to serve out their notice and there are many, many good arguments for not having a fired employee on the premises. You need to develop a policy with your board, but the wise policy is very likely that Dave hands over his keys, empties his desk into a box under supervision, and is escorted from the building.
posted by DarlingBri at 7:09 PM on November 26, 2016

Also, is there anyone in the org you can name Interim ED, rather than getting a temp? That's an option if so.
posted by Snarl Furillo at 7:10 PM on November 26, 2016

Response by poster: I'm the only one who could be interim ED (I used to do the job), but I'm not excited to do it. That's why I want to keep him around for a little while as we look for other candidates, but it sounds like that won't work out.

Also, I don't want to say things that would make this more identifiable, but there is no physical office, and I cannot meet with Dave in person.
posted by treehorn+bunny at 7:13 PM on November 26, 2016

Definitely check with an employment lawyer in your locality.

If you decide he needs to be walked out, make sure that you cut e-mail and other access during the dismissal notification too.

Depending on a number of factors, it may be better to ask him if he's willing to resign rather than be fired.
posted by Candleman at 7:32 PM on November 26, 2016

Response by poster: Since this may not have been clear from my update, Dave and I are not in the same locality.
posted by treehorn+bunny at 7:35 PM on November 26, 2016

When you fire him, it should be effective immediately, with severance in lieu of notice. You should pay severance unless he's actively malicious. You can fire over the phone if remote, not that weird.
posted by so fucking future at 7:36 PM on November 26, 2016 [4 favorites]

Dave may be eligible for unemployment insurance, so be sure you understand what the organization's responsibilities are regarding that. (In some states simple incompetence is not enough to deny UI based on firing for cause).

If you have a really good relationship with Dave and he understands and agrees that this role is not a good fit for him, sometimes it's possible to arrange a graceful exit with some lead time to make the transition. I did this with an employee who was really nice but just unable to do her work (I asked about her in a previous question). The probability of this working out is higher if he has reasons to not burn bridges, for example if he's planning to continue working in the same area in the future. But I do think that there are also really good reasons for just walking him out and paying him for a reasonable notice period, especially if there are other employees who are likely to get freaked out or get an earful about how awful you are, or if you don't think he'll be able to get any work done during the notice period.
posted by The Elusive Architeuthis at 7:38 PM on November 26, 2016 [1 favorite]

Change passwords.
posted by amtho at 7:42 PM on November 26, 2016

"Walking him out" can be metaphorical. If he's remote, it means you terminate his access to your org's email, documents, etc, (ideally during the meeting) and tell him to use the pre-paid shipping label you just sent to mail back any equipment he has, etc. Whatever "sever our relationship completely" means.

It sucks that you'll have to either pick up his work or pay someone else to do it, but like, you're seeing his maximum performance right now. You've told him his job is on the line and he's still a shrug emoticon leaving half his work undone. He's not going to do this stuff whether he works for you or not, so he might as well not work for you so you can concentrate on getting his work done and finding his replacement.
posted by Snarl Furillo at 7:49 PM on November 26, 2016 [4 favorites]

Response by poster: We are in a fairly narrow field so reasons not to burn bridges. I had not even thought about severance pay. Is that really necessary for a person who has worked for a company for only 3 months? How much would you offer? We have zero extra cash.
posted by treehorn+bunny at 7:56 PM on November 26, 2016

I had not even thought about severance pay. Is that really necessary for a person who has worked for a company for only 3 months?

There's no legal obligation, but the idea is that in the same way you would expect someone to give you two weeks notice before quitting, you should give someone (at least) 2 weeks pay after he's let go.
posted by deanc at 8:17 PM on November 26, 2016 [8 favorites]

This is soundly in the realm of "Ask An Employment Attorney."

You have a Board that seems uninterested in following jurisdiction requirements. They should know the requirements! What's up with that?

Just verify with the org's attorney or get a consultation to verify. Done.

In general, best practice is moment of notification is the moment employment ends + a severance accommodation of a few weeks. Because that is humane, civilized, and legally appropriate.

You seem to have trouble covering this guy's duties, so you should terminate his employment when you have support in place. Not before.

I have empathy for you right now. I own a small business, sometimes people who mean well but can not perform the role they fill work for us. It hurts to step up and end the relationship. We're small, so losing that person also means losing the crucial functions of the role they do perform correctly. It always feels like a risky gamble. You know what? Taking that risk and clearing the way for someone who functions better in that role ALWAYS works out. You don't do anyone favor's by letting them think they are succeeding where they are not.

I'm going to include a caveat here that does not apply to your situation, but as a small business we have dealt with, just to give you some perspective...

We had an employee that came to us through a colleague, he seemed great but also left colleague under possible dubious circumstances. Our other employees loved him, I identified he had poor judgement generally, and was a bad fit for our business. He was capable, just not reliable. It took FOREVER to push him out. We suffered financially over that time. I wish we had fired him at the 3 month point.

If this is not working out, rip the bandaid and do it (sorry for the allusion!) I swear it just drags on and sucks. Plus, he knows this is not working out, he'll just persist in the role as long as you let him. Nthing he will subtlety sabotage along the way to The End...

I believe I have explained how I know this is true. Just Do It. You will have less regret long term.
posted by jbenben at 8:22 PM on November 26, 2016 [9 favorites]

And that is precisely why you need to take Dave's contract to an employment attorney before taking action. They will be able to tell you what your responsibility is in terms of severance/unemployment and all that.

It may be that your contract allows you to kick him to the curb with no payment of any sort, or you may have to provide notice. Some states have laws that supersede some aspects of an employment contract for some employees, but may not for an ED since they are assumed to be more able to negotiate the terms of their employment. Also, since it is a remote work situation, multiple state laws may apply, so it could be even more complicated.

A few hundred dollars on a lawyer could end up saving you many thousands, so please seek advice.
posted by wierdo at 8:22 PM on November 26, 2016 [4 favorites]

Hire slow. Fire fast (with care).
posted by bz at 8:29 PM on November 26, 2016

As per your update...

Your organization can afford severance, or ethically YOU should not be working for them. C'mon!

I know you are not solely in charge of this aspect of the of this organization, but this is a real check-in. Is this how you want to live your life? For an organization that can't manage 2 weeks severance??

Do your best here, then look out for your own best interests. What you are describing is truly unfortunate and unnecessary. There are better ways.
posted by jbenben at 8:39 PM on November 26, 2016 [10 favorites]

One time I got fired from a shitty waiter job, but they did it the day after the schedule came out, so I reminded them that was shitty and maybe illegal, and they fell for it, and let me work out that last week, and I certainly tried to damage them in small ways while I remained. So don't do that. That's all I got.
posted by vrakatar at 8:50 PM on November 26, 2016 [1 favorite]

As above, either have a lawyer on your board or consult with one. Because it's certainly a possibility that Dave will sue you.
posted by jasper411 at 9:24 PM on November 26, 2016 [1 favorite]

Seconding changing his passwords and other practical considerations. Whomever you have in charge of IT, admin credentials, any kind of electronic access should be prepared to lock him out of everything, with the possible exception of whatever medium you'll be using to deliver to Dave the bad news, which should be a live meeting of some kind. If Dave is uniquely in charge of administrating any company assets, it's time to tell Dave there's a plan to eliminate single points of failure by adding full administrative access for someone else.

You never know who's going to be malicious when you fire them, so that person should be prepared to do it at once. You should also have a plan to recover any company hardware that Dave has in his possession, any files, keys (I know you said there's no office, but what physical resources are there), etc.

If he needs things from his computer, his emails, etc., the IT person should be prepared to give him limited access, or else dump his emails out in a form that can be sent to him, etc. Without knowing what you do, you may want to curate those emails so he's not getting inside info, client info, employee personal info, etc.
posted by Sunburnt at 11:57 PM on November 26, 2016

Three months? Interesting. I don't know what it's like in the US or wherever Dave is, but here in Australia most corporate employment contracts have a 3 month probation period built into contract, precisely for cases like this where it just doesn't work out.

It may be too late for Dave, but it's definitely worth building into future contracts so - when regrettably necessary - you can make a clean break at 3 months with no worries.

Best of luck,
posted by smoke at 12:08 AM on November 27, 2016 [1 favorite]

So I have worked with a lot of nonprofits, and employment law is often where they fall down. Here are some key questions.

1. Have you guys been paying unemployment insurance for him? Because three months or no month, he may well file.

2. Can you afford to pay at least two weeks severance? If not, he has incentive to screw you guys over.

3. Does he know he's doing a bad job? This affects how likely he is to burn things down.
posted by corb at 1:02 AM on November 27, 2016

OK, if you can't do it in person, you need to do it by phone, immediately following up with an emailed termination letter like the one I previously linked to.
posted by DarlingBri at 3:39 AM on November 27, 2016

I don't know what it's like in the US or wherever Dave is, but here in Australia most corporate employment contracts have a 3 month probation period built into contract, precisely for cases like this where it just doesn't work out.

At-will employment makes the US different.
posted by plep at 3:45 AM on November 27, 2016 [1 favorite]

And of course different jurisdictions within the US also differ, and any contracts he may have signed may alter things.

So, seconding getting an employment lawyer to advise on this, especially as you've never fired anyone (let alone an ED) before.

And this is a wake-up call : I know you are not solely in charge of this aspect of the of this organization, but this is a real check-in. Is this how you want to live your life? For an organization that can't manage 2 weeks severance??
posted by plep at 3:48 AM on November 27, 2016 [1 favorite]

After reading your update I am concerned too...what a tough situation. I almost think you can't afford NOT to hire a lawyer, but appreciate the constraints, and I know the US is quite different. Given that it hasn't been that long, I think some will depend on the contract and some your approach vis-a-vis optics. What was the probationary period? Will not paying severance get around and prevent you from hiring anyone with good sense? (I might not work for a board that I'd heard terminated an ED that way.)

Agreed that it's important to know where you stand with any things like employment (I'm in Ontario so this works differently here.) There are also benefits although I'm thinking they hadn't kicked in yet?

If he's a contractor/freelance that is different; I'm increasingly unclear on whether this is a full staff position.

By walking out I definitely agree that remotely this means loss of access to everything IT related as well as contact lists (for an ED, this may be the most valuable piece.)

I gently agree that this might be a big learning opportunity for your board around hiring practices (good contracts, etc.) and fiscal management (severance, legal, and temp worker fees are all part of being fiscally viable.) I hear that he has been hurting your profits but three months isn't that long of a time to be in the hole.
posted by warriorqueen at 4:32 AM on November 27, 2016 [1 favorite]

Definitely employment lawyer.

Once you pull the trigger on the termination you really don't have a say in things honestly. If you give him a month he may not even want to stay, so expect that he will be done that day. Even better, you could tell him that day is his last day, but with it being so close to the holidays you will pay him for the month even though he will be done. Done!

You will need to notify your state labor office as there is paperwork you will have to do on your end regarding unemployment so that way when he applies for unemployment you are covered.

If he is in a different state it really comes down to how your organization is headquartered, so and employment or company lawyer should help with this.

Did he sign a non compete when he was hired? You will want to review that paperwork too. He has full rights to contest the terms of the termination paperwork by the way, so again, lawyer up.

Honestly, I know it's a crappy situation but I'd be kind of pissed in your shoes at the board for making you bear the brunt of all of this. What's up with that?
posted by floweredfish at 6:01 AM on November 27, 2016 [1 favorite]

The best way to go in your situation is to fire him as soon as you have an interim plan. As others have stated, it's no good to fire him and then ask him to stick around for a couple of months to help you out.

Review the following questions with the board and make sure you have answers and/or paperwork ready. If you don't know the answers, or if they're not in the handbook, then I would STRONGLY suggest consulting an employment lawyer with experience in the state where your organization is.
- Is Dave under contract? If so, is your termination in compliance with that contract?
- Is your state an "employment-at-will" state? If not, you will most likely require additional paperwork specific to your state -- talk to an employment lawyer.
- Do you have the termination paperwork required by your state? For instance, you may be required to provide the terminated employee with a specific unemployment form and a letter stating the last day of employment, last day of worker's comp, and other state-mandated information (along with COBRA notices, etc.).
- Does Dave have accumulated vacation time? Will you be paying it out in his last paycheck?
- Does Dave have health insurance through the organization? If so, are you prepared to administer COBRA?
- Are you planning to provide Dave any severance pay (for instance, two weeks pay)? If so, a lawyer would most likely recommend that you have him sign a severance agreement (ask the lawyer about details -- they are highly dependent on the state).
- Are you planning to contest Dave's unemployment filing, if he makes one?
- What will the date of Dave's last paycheck be?
- What IT assets does Dave have access to? Make a list and be prepared to cut off access and/or ask for passwords at the termination meeting.
- What other company assets does Dave have access to? Keys, documents, a rolodex of all your major donors, etc.? Prepare a list.
- How will you handle personal files & belongings? I'd suggest bringing a box for him. If he has personal files on an organization computer, I'd suggest having him leave it for you to sort later -- you can return any personal files to him on a flash drive.
- Do you have an interim plan or an interim director lined up?

Make sure you have at least two board members at the firing meeting, whether it is by phone/video chat or in person. If Dave works at the organization's office, then ideally you or another board member should be on-site with him. If no one from the board is able to be on-site, then you may need to brief two other on-site employees about what is happening so they can be present to walk Dave out after the meeting. If at all possible, do not let him clear out his office or walk out alone.

Prepare a checklist for yourself so you don't forget anything during the meeting. That should include:
- Check that you have his accurate current address for mailing his last paycheck and his W2 in January.
- Check that you have an up-to-date personal email address for any post-employment correspondence.
- Review the information about his last paycheck date, his health insurance, and his vacation pay.
- Provide him with any state-required information or forms.
- Go down the list of IT assets (ask for passwords if required) and company assets.
- If applicable, share details about the severance agreement and severance payment; if you plan not to contest his unemployment filing, let him know.
- Tell him how you'll handle personal items and/or files.

Prepare a script for yourself, and be sure to practice delivering it to someone else before the meeting. Keep it quick and to the point -- overexplaining will turn this from a difficult meeting into an unbearable one, for you and him. Here's a good primer on termination scripts. Based on the information you've provided, here's the script I'd use.
"Hi Dave, please sit down. I have some bad news. Today we're terminating your employment for poor performance -- specifically, for failure to meet the goals of your remediation plan. I have a short checklist to go through [go through checklist]. If you have any questions, please contact [person]. I'd like to thank you for working with us and for all the things you have contributed here. I wish you the best. Thank you. [Shake hands, escort him to get his belongings.]"

Be prepared for his questions & reactions.
- If he asks, "Why?" you can just repeat, "Your employment is being terminated for poor performance, specifically for failure to meet the goals of your remediation plan."
- If he won't stop asking "Why," or if he tries to argue the facts about his performance, just say: "I'm not here to debate; the decision has already been made and it is final."
- If he has a question that you don't know the answer to, let him know that you will find out and email him promptly.
- If he cries, be prepared to provide him a tissue. Be kind, but don't be so empathetic that you confuse the message. GOOD: "Would you like a tissue? Take as much time as you need." BAD: "Don't feel bad, you're an amazing employee, you're so great that the board was split on whether to fire you at all."
- If he gets angry, be prepared to ignore it and/or shut it down, as appropriate. "We're not here to debate with you. Let's get back to the checklist."
- In the unlikely event that you're concerned for your safety, be prepared to remove yourself from danger and call the police. When you come in to sit for the meeting, make sure that he is not sitting in a place where he could block the door.

You'll be fine -- if you've gotten this far, you're prepped and you've practiced giving the script several times.

- Escort him to get his things and out of the building.
- Shut down his IT access.
- Have a seat and take a load off -- you've just done something really hard.
posted by ourobouros at 8:36 AM on November 27, 2016 [7 favorites]

You should get to know Blue Avocado - a US organization devoted to the management of nonprofit organizations. there is so much to the business of running a nonprofit that most board members don't know, overlaid by all the complexities of a nonprofit and often volunteer intensive organization. They have a free email newsletter - at one time I was an a board where all members were encouraged to subscribe.

Here is their advice on firing your executive director, including a sample letter.
posted by metahawk at 10:48 AM on November 27, 2016 [1 favorite]

By the way, many nonprofit boards can be very leaky sieves around rich gossip. You will need to strongly remind the board of their confidentiality requirements on this issue - both in terms of not telling Dave he is fired before it is official and also in terms what they say to others about the termination.

Consider how the membership will react. After three months, he may not be that embedded on your organization but depending on his history and the nature of your group, you want to anticipate any fallout in your community and get ahead of it if possible.
posted by metahawk at 10:59 AM on November 27, 2016 [1 favorite]

I was part of an org that let an ED go. The ED thought he/she was wrongfully terminated. The resulting lawsuit took a year, with people subpoenaed on both sides. The settlement and legal costs almost wiped out the org.

Get a lawyer.
posted by Monday at 11:37 AM on November 27, 2016 [3 favorites]

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