How not to handle terminations and layoffs

What HR professionals and managers can learn from the United Airlines fiasco
Cartoon by Jim Reidy

It was all over the news and social media recently when United Airlines personnel selected passengers, who were already seated on a plane, to involuntarily give up their seats to make room for traveling flight crews. To make matters worse, they also forcefully removed one passenger from that plane.

The decisions to terminate employees or reduce the size of a workforce in a layoff are never easy. There are, however, some lessons all employers can learn from the recent United Airlines incident, and with that hopefully avoid the negative publicity and potential legal liability that can result from missteps in the termination process.

• People usually make travels plans well in advance of their trip and therefore don’t handle disruptions well. Employees generally don’t plan or expect to lose their jobs, and most employees live up to their income level. The impact on the employee should always be factored in, especially when considering timing of the termination, the offer of any severance or outplacement and how you will respond to his/her application for unemployment benefits.

• While you want to limit carry-on size, most travelers have lots of baggage. Every employee has their own perspective on their role in an organization and self-worth. Perhaps that’s why many employees are surprised by poor or average performance evaluations, let alone a termination notice. Terminations are received and processed by people in different ways, and it shouldn’t be assumed that employees will passively accept termination.

• Are extra flight crews really more important than your loyal passengers? When an employee is terminated as part of a layoff, one of the first questions is, “Who is going to take my place and perform all or some of my job functions?” The replacement is often scrutinized with regard to his/her age, gender, race, disability and other characteristics as comparators. Thought should be given to these job changes, the replacements and how they will be perceived.

• Offering incentives to give up a seat has to be meaningful to work. Employers who need to reduce their head count frequently offer early exit incentives for employees to take a separation package rather than being involuntarily terminated. Those incentives, like the severance offered in exchange for a general release, should be something of value so the employee has a reason to take the package. 

 • Be flexible because you may need to rethink who is on the list. The list of employees included in a layoff can change daily. That could be because of changing business needs or other unexpected developments. Employers need to be flexible and be willing to adjust the lists accordingly. 

• Seatbelts should be secured, seatbacks in the upright position and please pay attention to the flight attendant for important safety information. Once the termination or layoff decision is made, the process should be orderly and respectful. Managers should be trained on what to say and what not to say in this process. An unfortunate stray remark, misunderstood comment or other insensitive statement can cause the process to unravel and claims to arise.

• Expect some push back from others who remain in the cabin. Why would employees who remain employed object to the employer’s decision to terminate or lay off others? Perhaps it is because their friends or family members lost their jobs. It could also be because they think the process was unreasonable, unfair or they wonder, “Could I be next?” Managers should also be trained on post-termination messaging to dispel misinformation and provide reassurances as to those who remain. 

• If a passenger gets unruly, don’t overreact (because everyone has a smartphone). Most termination meetings like this are uncomfortable, even if the employee has been warned in advance that termination could be coming. It is best to have two company representatives present, and unless you are dealing with a threat of workplace violence, outbursts from employees should be met with measured responses.

• Remember, disgruntled passengers have families and friends. They are potential future passengers too. A termination, or layoff, while reasonable and justified, impacts more people than just the employee. While you can’t control the narrative (unless you have a separation agreement with confidentiality and non-disparagement provisions) if the process is handled with respect and fairness you may reduce the hard feelings and negative public relations on the street.

• Lawyers have billboards and magazine advertisements everywhere (including the seatback on the plane and in the terminal). Gone are the days when an employee accepted a termination or a layoff without thinking about calling a lawyer to either negotiate a better severance or to advance a claim related to the separation. Given the remedies available from most successful workplace claims, and the fact that, even with a nominal recovery, a plaintiff can recover attorney’s fees, it isn’t uncommon for employers to hear from a lawyer representing one or more former employees. 

A workplace claim against an employer, like the United Airlines incident, can be disruptive, expensive and send shockwaves through the business. All employers should take the time and care necessary to plan and properly handle termination or layoff decisions. Hopefully that will help reduce the risk of your workplace being featured on a viral video on social media. 

Attorney Jim Reidy is a shareholder at Sheehan Phinney, where he is chair of its Labor and Employment Practice Group.

Categories: Legal Advice