Phrases to Avoid When Terminating an Employee

Posted by: Karen Booher on May 15th, 2023

Terminating an employee is one of the least favorite tasks of managers and HR departments.

To avoid an uncomfortable or confrontational situation, there can sometimes be a tendency of the party doing the termination to soften the blow by not being forthright in sharing the actual reason(s) the termination decision was made.

However uneasy it is to be 100% honest, vagueness should be avoided.

“Not a Good Fit”

Phrases like “not a good fit”, or “not a good cultural fit” can potentially expose a company to a claim of discrimination and retaliation. If a company has sufficient documentation upon which the employer based its decision, it may be okay but, in the end, that may be up to the courts.

According to Mark Sabey with Hall Render Killian Heath & Lyman PC, “the phrase ‘not a good fit’ remains problematic because it is ambiguous and conclusory and could just as easily apply to unlawful prejudices as to legitimate reasons. It is not specific enough to point to a clear and legally acceptable reason. More focused explanations, with supporting documentation, should be used to justify any employment termination”, says Sabey.

For example, if it can be justified with specific examples, a statement such as “you have demonstrated that you are not aligned with our company’s mission” is better than saying “you’re not a good fit”.

But, What About “Employment At Will”?

As with many states, Colorado is an “employment at will” state. This means that the employee or the employer can terminate the employment relationship for no reason, or any reason, at any time, and that there is no promise or guarantee of employment for a specified period of time.

However, there are a number of exceptions to the “employment at will” doctrine. For example, an employer can’t fire an employee if the employer’s motive is illegal discrimination such as discrimination based on race, sex, age, national origin, sexual orientation, gender identity, or disability.

Recommendations for Proper Terminations

Sabey recommends the following practical takeaways:

• Require review and approval from human resources or administration prior to terminating an employee.
• Ensure that there is clear documentation supporting specific reasons for termination.
• Communicate one or more good reasons to the employee during the termination meeting or conversation and avoid other vague and conclusory statements like “it’s just not working out”.
• Document the termination reason(s) in a letter to the employee.

As outlined in our previous blog, since May 2022, Colorado employers have been required by law to provide employees with a form, in hard copy or electronic format, upon separation. This form includes the “reason the employee separated from employment”. The Colorado Department of Labor and Employment (“CDLE”) released a sample form in November 2022, although employers may use their own form if it contains the information in CDLE’s form.

---

Sources:

1. ASA Staffing Today, 5/2/2023. “’Not a Good Fit’ Termination is Still Not a Good Fit”, by Mark Sabey, Lexology, 04/26/23.
2. https://www.m-s-lawyers.com/news/what-is-at-will-employment-in-colorado-denver-colorado-business-lawyer-1.html#:~:text=There%20is%20a%20presumption%20in,a%20specified%20period%20of%20time.
3. https://www.lichtensteinlaw.com/practice/wrongful-termination/#:~:text=But%20there%20are%20a%20number,%2C%20gender%20identity%2C%20or%20disability.