Executives & Professionals: Consider These Things In Event Of Potential/Actual Termination

On behalf of Peterson, Berk & Cross, S.C.

In other articles, I’ve discussed things that all employees should keep in mind when it comes to potential job loss, job loss and severance. These include articles such as those here: Problems at the Job (archive) and Things to Consider When Your Employer Offers a Severance Agreement.

If you are an executive or professional, there are some considerations you should particularly take into account.

Keep your communications positive.

Be positive. Sounds easy, right? But being positive requires more than not being belligerent and unprofessional. Being positive requires discipline: not taking the bait when provoked, and not fighting out losing battles (even nicely and subtly) you weren’t asked to enter.

I have found that executives and professionals often do take the bait, and react to bad situations negatively. Often, this is precisely because they are smart and well-attuned to the details and circumstances that make things unfair. Plus, they are usually aware of managerial history, and circumstances where worse offenders were treated much better.

These and other factors create a combustible situation when a professional worker is confronted with employment problems.

If you are given a reprimand, you’ll be tempted to take a negative approach in response. You’ll want to point out to management, directly or indirectly, all the aspects of the reprimand that are untrue, unfair, etc. When you feel tempted to communicate in this way, ask yourself this: (1) Will it improve my situation for me to communicate AT ALL? (E.g. Is there any conceivable chance to undo the reprimand or termination?) (2) If yes, will it improve my situation to communicate my disagreement in the form of criticism?

For example, a negative response to a reprimand is to say something like this: “I only violated this expectation because it is vague and impossible to achieve.”

A positive response would be something like this: “Going forward, I will take to heart your concerns about my ‘productivity being low.’ Can you help me identify benchmarks, such as items produced per department per month, that I can address?”

If your positive communication is met with negativity from the employer (“No, you should already know our expectations”), then let the cycle end there. It is never a good idea to respond to negativity with negativity. Yet it is always a temptation. Thus the importance of discipline in staying positive.

Keep your communications factual.

It’s one thing to call the ethics hotline and report “My boss is obnoxious and harassing me.” It’s another to report “On May 5, my boss Joe Smith threw his phone across the room. He raised his voice at me and told me I should ‘Get the #[email protected] out’ of his office. I felt concerned and anxious after this happened.”

The latter phrase is the language of facts. That’s the only language that gives you a chance. And usually, THAT doesn’t work. (Before you call a hotline or report a complaint, it can be very helpful to check out who is involved with that process, and how that process has worked for others- I’ve seen many situations where a “confidential” hotline was the beginning of the end).

Remember, if you are running into employment problems, chances are that management and important political players are lined up against you. Using the language of adjectives- “harassment,” “jerk,” “unfair,” “abusive,” etc.- will further entrench the opposing forces above you. If you speak in the language of facts, you will be more credible, and will make it harder for others to hold your concerns against you.

Before communicating to management or third parties about your concerns, always give careful thought to: (1) Is it required or helpful that I communicate at all? (2) If yes, how do I state my concerns in the most factual and positive way possible?

As an attorney asked to help people with such communications, I often give these matters long thought before recommending whether to communicate, and if so, how to do it in the most positive and factual way.

When criticized or fired, don’t dredge up “dirt.”

Executive or professional employees, as compared to other employees, are more likely to know “dirt” about their organization and coworkers.

When threatened or fired by the organization, the instinct may arise to talk about this “dirt.”

That is, you may want to talk about what you feel others did wrong. Or how you may report certain misconduct, to hurt the organization now that they’ve hurt you.

If these instincts arise, keep this in mind: what is your motivation?

If your primary motivation is (truly) to correct others’ misconduct, than you would have sought to correct those issues in another context. That is, you wouldn’t have brought these issues up in the context of responding to criticism of you. In most instances I’ve observed, the employee’s main reason (sometimes subconscious) for bringing up dirt is to try to use it as leverage. To try to fend off a termination, or to raise a severance offer.

But rarely does this work, in the disputes I see. Employers usually react to the mention of dirt- even if there’s proof of its truth- by becoming even more entrenched against the employee.

So the common instinct of digging dirt usually blows up in the executive’s face.

There are some occasions where a fired executive or professional has potential legal claims, and those claims require addressing certain actions of misconduct by an employer. But in most of the occasions I’ve seen, executive and professional employees guess wrong in the issues they choose as would-be Achilles heels. Then the wrong guess worsens matters, because the employer is not concerned about risk/exposure, but is further upset with you for “going there.”

Do not write to management, coworkers, etc. after the fact to explain your side of things.

This is a common temptation I see amongst executives and professionals. After being fired, they want to write- to set the record straight- and tell their side of the story to coworkers, subordinates, management, the board, etc.

This is an understandable instinct, as are all the others above. If someone criticizes you (especially if in an objectively wrong way), you don’t want all these people you used to work closely with thinking all these bad things they hear about you are true.

However, what I have often found is: (1) these people usually don’t hear the same sordid details that you did while getting fired- they are usually kept in the dark by those in the know, and usually get information from rumors that they know to be rumors; and (2) when a departed worker DOES send off the set-the-record straight letter, that letter has no discernible positive effect. The most useful function of correspondence between a fired employee and others is the use of that document in litigation. In almost every instance I’ve seen set-the-record straight letters my clients wrote, I’ve cringed. (I should mention I have written such letters myself dating back to my first job: only after making mistakes myself and many observations of others did the advice above occur to me).

If you think you may have a legal claim, talk to an attorney about it before the employer.

If you think you have a legal claim, it’s usually a bad idea to tell the employer about it. As a general matter, there are these risks with mentioning to the employer you think there’s a potential legal claim: (1) they’ve already evaluated that themselves, and they think there’s no legal claim (perhaps for better reasons than you think there is); and (2) even if they think there’s a possibly good claim, they don’t think you’ll be able to enforce it because you don’t have a lawyer.

Most employers are not threatened by an employee’s threat of a legal claim, and do not increase their severance offer, etc. unless and until the employee retains an attorney and takes legal action. Often, the employee’s threat upsets the employer and is counterproductive, causing the employer to take additional harsh measures (e.g. contesting unemployment it would have not otherwise contested).

If you think there may be a legal claim, best you keep that thought to yourself and discuss it with an attorney before threatening the employer with a claim or proceeding with a claim.

In many instances, executives and professionals who consulted with me did have potential legal claims, and leverage in severance negotiations because of that fact. But rarely is an employee in a position to know how to accurately evaluate a legal claim himself or herself, much less know how to effectively communicate, negotiate and/or litigate with the employer. Self-help usually fails, including for executives and professionals, when attempts are made to improve a termination or severance situation via legal posturing.


Executives and professionals who encounter employment problems have several issues of particular concern and importance. If you tackle these issues alone, please keep the considerations above in mind before taking action.