Question: We have several reasons to terminate a long-term employee whose performance and attitude have declined to the point of no return, but we don’t have good documentation. He says he cannot wait to retire but has not given us a date. We’d like to keep his termination amicable, acknowledging his length of service with us, but tell him that it’s time to part ways. Do we need to be more specific?
Answer: Be careful. Making any comment related to the employee’s length of service may backfire and be perceived as age-related. Words matter when you are communicating the company’s decision to end employment. Anyone who has the responsibility of communicating a termination decision should be prepared, truthful, and consistent. Being prepared means that the company has identified a discrete reason (or reasons) for termination and conducted a risk analysis before taking action. By suggesting that it’s time to part ways, you aren’t giving a clear reason for the involuntary termination other than the passage of time. Failing to identify at least one legitimate business reason for the termination creates room for the employee to allege that your real reason is unlawful discrimination. Instead, it is best to tell the truth. Level with the employee about why they are being discharged and be prepared to back it up with proper documentation.
Ensure Consistent Treatment to Avoid Age Discrimination Claims
How you treat this employee should also be consistent with how similarly situated employees are treated. A federal court recently allowed an age discrimination case to proceed to trial due in part to a statement made by the manager in a termination meeting. The manager told the employee they’d had a “long run” and it was “time to leave.” The court found that this comment could be discriminatory, especially when the employee was provided no other reason for the termination during the meeting. The court also found that the company’s claim that the employee’s job was eliminated in a restructure could be pretext for discrimination because the company had no evidence to prove it. The court ruled that a reasonable fact finder could conclude that the employee was discriminated against because of his age. (Baldi, III v. Upper Darby Township, ED Pa, Sept. 2024).
Terminating a long-term employee can be tricky, but it can be done without unnecessarily inviting legal risk. To avoid a trip to court, it’s better to be prepared, truthful, and consistent when you communicate a termination decision. Members, be sure to talk with your Vigilant Law Group employment attorney if you have questions or want to review the situation before having a conversation with your employee.
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