How to avoid going viral with a termination

It’s one of HR’s worse nightmares: An employee or ex-employee posts complaints about their employer on social media, and it goes viral.

Just recently, a U.S. worker fired by two human resources professionals over Zoom recorded and posted the incident on TikTok. Brittany Pietsch was told that she was being let go because she was not meeting expectations based on 2023 performance evaluations.

While Pietsch challenged this assessment, the one HR person responded, “I don't think there's anything we can say in this moment or today, Brittany, that's going to change the way that you feel.” 

Later, the company’s CEO — one of the nearly two million who saw Pietsch’s video — said it was “painful to watch”:

We fired ~40 sales people out of over 1,500 in our go to market org. That’s a normal quarter. When we’re doing performance management right, we can often tell within 3 months or less of a sales hire, even during the holidays, whether they’re going to be successful or not. Sadly,…

— Matthew Prince 🌥 (@eastdakota) January 12, 2024

Two employment lawyers speaking to Canadian HR Reporter say the way this termination was handled is not necessarily wrong — and of course the laws are different in the U.S. — but there are takeaways for HR on how to best handle this kind of situation.

Who should be on the termination call

In her TikTok video, Pietsche was not happy that the two people on the Zoom call were from HR and not her direct manager. But is that necessary?

It depends on the organization itself, says Lisa Stam, managing partner at Spring Law in Toronto.

“There's no reason why you can't just have the HR do it, it's a five-minute notice,” she says, adding two people are always better so there’s a witness.

While having a manager may be a good idea because they know the employee involved, it can also create more difficulty, says Krista Kais-Prial, a partner at Israel Foulon Wong in Toronto.

“It's going to escalate things emotionally if the person is going to start accusing the manager, and then the manager is going to engage — that could cause more issues than a personal meeting with just HR people.”

But often management isn’t available, especially if there are mass layoffs, and that’s fine, she says.

“I think in the Canadian context, a court wouldn't say that there's bad faith if the manager wasn't at the meeting… It's more about ‘How can we soften this and make this more personal?’”

Assume you’re being recorded

Of course, Pietsche decided to record her meeting – presumably without the knowledge of the HR people on the call.

These days, every employer should assume they're being recorded, and act accordingly, says Stam.

“Even if you can't see the recording function on the Zoom or whatever, they're just using their iPhone, like this person, and it happens all the time, whether it's in their pocket, at an in-person or on video, it's happening all the time. It's just the way the world is now.”

During a termination meeting, HR professionals should not be adjudicating whether or not this person has the right to record without knowledge or consent, says Kais-Prial.

“The best practice — without sounding paranoid — is to remember that whatever you say in this meeting can be repeated to a lawyer, in court, elsewhere… if it's not recorded, the employee still has their testimony, as it happened to them. So either way, recorded or not, you should always be very mindful in choosing your words, because they may be repeated.”

If HR or management assume they’re going to be recorded, they’re unlikely to give as much confidential information in that meeting, which is advisable should the employee decide to post the meeting on their Instagram account, says Stam.

“Govern yourself accordingly, knowing that that could be a risk.”

On the other hand, it’s not a free-for-all for the employee, says Kais-Prial, and if an employee discloses confidential information during one of these calls, and then posts that on social media, that could have negative consequences for the employee.

“The employee has to think very carefully about repercussions, any restrictive covenants or confidentiality agreements they signed during their employment with the company, that they will sign on termination. And even if they don't have a signed confidentiality agreement, the employee has an ongoing implied duty of confidentiality to the company.”

They may also have a signed severance package with a non-disparagement clause, she says, so if they publish something on social media that does have proprietary confidential information or is disparaging in nature, it could be an issue for them.

Is it legal to record termination meetings?

As for the legalities of these recordings, they are allowed, according to Stam.

“Under our Criminal Code, you only need one party to consent, you don't need both parties; so you cannot intercept in someone else's conversation, but if you are part of this two-person conversation, you only need one person to consent.”

However, there might be other consequences for that employee, she says.

“If it's just a regular meeting and not a termination meeting, it's going to erode trust, it's going to lead to all these other issues.

“And if you've got an employee that posted like this person did, good luck on finding another job. There's not a lot of employers that are going to be enthusiastic about hiring you if you're hanging out everybody's dirty laundry everywhere.”

From an employment law prospective, recording without the knowledge and consent of the manager can cause breach of trust, a breach of policy, and could potentially be a termination for cause situation, says Kais-Prial.

“On the other side, depending on the case, it may be acceptable and may be accepted by the court as necessary for protecting the employee in cases of discrimination, harassment or bullying.”

But when it comes HR recording the call, that’s not necessarily a great idea, says Stam, who instead recommends simple note-taking.

“The other piece is that if you do record, you'd want to tell [the employee] and it amps up the emotional temperature so much — the whole meeting is going to unfold very differently than if you just start talking and do it.”

Short and sweet: Following a script

During the Pietsche termination, it was clear the two HR people were largely following a script. But is that always advisable?

It’s OK to follow a script as long as it doesn't come across as too scripted or robotic, says Kais-Prial.

“If it's a termination without cause, you don't need to go into a long list of the person's shortcomings. You can just say, ‘This is happening for business reasons.’”

And if the conversation veers off course, and questions come up that you don’t anticipate, that's fine, she says.

“But my rule of thumb is ‘less is more’ or ‘less is always more’ — you don't need to go on and on about the why of this. You can dig yourself into a deeper hole by explaining the why of it all.”

If all goes well, a termination meeting should be “short and sweet,” says Stam.

“It's five minutes, tops; if it's more than that, you're blathering and you’ll get yourself into trouble.”

This kind of encounter will always be “super awkward” and difficult for all parties, with emotions running high, she says.

“Where good intentions really go sideways for employers or HR people is when they try to make the person feel better about the situation and they start talking more, and they start going off script.”

It’s important for HR or management to have a general outline of what’s involved, without overwhelming the person, says Kais-Prial.

“You might not have the answer to everything so you may need to loop back with them once you've spoken to the business,” she says.

“It's a fine line between keeping it short and making the employee feel like they've been listened to and they've had their time during this difficult situation.”

Avoiding bad faith dismissals

Another concern? There have been cases involving claims for bad faith dismissals, in which people felt they were treated unfairly during their termination.

Case law in Canada basically requires employers to “fire nicely,” says Stam.

“When you fire people, there's all the usual risk of a bad faith conduct if you do it in a very humiliating way, if you do it in front of people, if you do it in the glass boardroom... You don't want to do any of that; be discreet and don't embarrass them, give them the dignity of a more discreet termination. I think that's really important. If the employer does it in a big, loud, embarrassing way, then you do risk the employee including a claim for bad faith damages on their termination.”

However, case law is also clear that bad faith damages are not reserved for the usual upset of being fired, she says.

“There's an assumption that it's going to be upsetting.”

The normal feelings of distress that come with a dismissal are not compensable at law, says Kais-Prial.

“We all know getting fired sucks. You're never going to come out of a meeting having been terminated and say, ‘Wow, that was a great meeting that made me feel good about myself’ — it's always going to be a difficult conversation.”

However, HR can try to minimize any accusations that they were unduly insensitive, misleading or untruthful in the way they handled a termination, she says.

“That's why I'm saying less is more and don't lie, don't be dishonest. And don't say more than you actually know, especially if you don't have personal dealings with this person. Don't overextend and say more than you're actually sure of.

“Keeping it brief but keeping it focused on the positive aspects, wherever possible, I think that goes a long way.”

Despite these various rules, it’s still possible to be sympathetic, says Stam.

“You can certainly say… ‘We're sorry that we have to give you this news today,’” she says.

“I don't think the courts demand perfection on this, and there's no perfect way to do it.”