News & Insights

HR Best PracticesDecember 22, 2021by Todd StantonNo Fire Season

Why make an employee’s worst day harder than it already has to be?

There are lots of ways to upset employees, especially when it comes to terminating their employment. However, why make an employee’s worst day harder than it already has to be? Timing is one of the most important factors when you decide to fire an employee.

We call the 7-week period, starting with the week before Thanksgiving and ending on New Year’s, the “No-Fire Season.” Terminating or demoting an employee, giving a poor review, or putting them on a performance improvement plan during the holiday season is simply more antagonizing than it otherwise has to be. If let go during this time, employees are more likely to be shocked, react aggressively, and be open to legal action. 

Employees are already stressed about higher grocery bills, gas prices, holiday plans, and family events. It’s not long before any conversation during a holiday gathering turns to the topic of work and someone asks your former employee how their job is going. 

As resentment grows, the former employee’s anger also rises. If the fired employee decides to disclose their recent separation, the story will be anything but objective. Social mores compel the listener to try to empathize, and before long, you will be smeared as Scrooge incarnate, having snatched a Merry Christmas right from under the former employee’s tree.

The feelings of unfairness will be stoked and remonstrations of your heartlessness amplified. Chances are good that someone chatting with the person you just fired knows just the plaintiff’s attorney with whom they should speak. The thrice-removed anecdote they hear will play out in the former employee’s mind of a “$100,000,000 settlement for wrongful termination,” which may lead to legal action against you.

If that was not bad enough, being fired during the holidays also brings anxiety home. Now that they have lost their job, how are they going to explain to their spouse who is paying for this year’s holiday gifts or providing health insurance? This time of year makes it harder to find a new job as hiring departments generally focus on getting through the end of the budget year, pushing back the potential of new employment until the calendar turns. 

As friends and family get ready to celebrate the holidays, the former employee may stew as they watch happier folks living with joyful security. With increasing inflation and an income reduced to zero, the new stress on the family only makes tensions rise.

None of this suggests you should look the other way if an employee engages in serious misconduct or an egregious rules violation. If an employee is caught stealing, drunk in the office, or someone makes a threat of violence, of course, summary termination is warranted.  

If you are contemplating finally letting someone go because of an ongoing performance issue you have been putting up with for months, though, we would strongly recommend you shelve your inclination until January. 

Have another eggnog and accept that whatever inefficiencies your business will have to endure over the next few weeks pale in comparison to the cost of responding to a demand letter, EEOC charge, or lawsuit. 

As you wait, get things in order. With the assistance of an employment lawyer or your HR department, draft a quick memo outlining the issues underlying the intention to fire, as well as the decision to wait a few weeks to announce it. This quick step protects the company from any intervening events that would make the separation more complicated.   

We generally recommend offering a to-be-terminated employee the chance to resign, as well as some amount of severance pay in exchange for a separation agreement and release of claims. We suggest preparing talking points to help communicate the decision to the employee, maintaining a non-confrontational and professional tone. Talking points help remove some of the uncertainty surrounding the firing and alleviate what you share with coworkers, clients, and prospective employers. Finally, this period provides an opportunity to explain unemployment and the continuation of benefits. All this lowers the temperature and lessens the tension of losing a job.

Remain professional and respectful and let employees go until after the holiday season is completed. The risks of choosing otherwise almost always outweigh the reward.

Todd Stanton is the founder of Stanton Law in Atlanta. He serves as a Principal and Senior Employment Counsel and focuses on management representation in employment matters. A litigator by training, he’s well-versed in the slate of employment law shorthand and knows first-hand how much sloppy human resources practices can end up costing.