In HR Dive’s Mailbag series, we answer HR professionals’ questions about all things work. Have a question? Send it to [email protected].
Q: We terminated a relatively new employee for performance and attendance issues. They’re requesting a letter stating why they were let go. What is this for, and should we provide it? What should it say?
A: “It depends,” according to Matthew Korn, partner at Fisher Phillips and co-chair of the firm’s reductions in force team.
“The legal answer is, in most states, you're not required to provide a written termination notice. Of course, if a state law requires you to do it, then you should,” he said.
Per Indeed, at least Arizona, California, Illinois and New Jersey require employers to provide termination notices. In some form, employers in at least Connecticut, Georgia, Tennessee and Texas employers must give separation notices. The organization also noted that many employers provide a simple separation letter to assist workers in applying for unemployment.
Why would a worker ask for a termination letter?
“At-will employment,” a common arrangement in the U.S., means that HR can fire someone without cause, “with or without notice, as long as it's not for an unlawful reason,” Korn explained.
Often, however, there is a reason, and employees may want that information, especially if it was not provided during the termination meeting.
But, he said, “often, if an employee gets fired and they felt like the firing was for an unlawful reason, they may have reached out to a lawyer. And the lawyer is asking for a letter to kind of lock in what the reasons were for the termination.”
Should HR provide the letter?
Whether HR should provide a letter may be a fact-specific question, but it may provide clarity in some situations.
“Oftentimes, when we get into trouble, it's because we say something like, ‘It's just not working out.’ We don't really provide a reason,” Korn said, drawing from his years of advising on terminations.
“Generally, that stems from — in a lot of cases — an avoidance of conflict. We don't want to have the tough conversation,” he said.
But if HR doesn’t have the conversation, Korn said, “they're going to think the worst.”
What should it say?
If HR decides to fulfill the request, “you want to make sure that whatever you put in the letter is truthful and honest — you don't want to lie in a letter like that,” Korn said.
A key best practice: Make the termination letter “complete.” That means all reasons for the termination are included, he said.
For example, if HR said they terminated an employee for being late several days in a row but the employee also was under-performing, that would be an incomplete letter.
“It's harder once you've documented the reason to say, ‘Well, there's also this,’” Korn said. “It looks like we're shifting the reason, and we don't want to do that, from an employer perspective.”
Korn recommended HR work with legal counsel to review the letter, because, “again, it should be triggering some alarm bells that [the fired employee] may have an attorney and may be looking to initiate some kind of legal claim.”
