 |
Are You Thinking About Terminating An Employee?
Save yourself a tremendous amount of emotional distress, disruption to your business operations and the exorbitant costs of litigation and settlement!
Consider the following before terminating an employee:
1. Evaluating the Situation
| a. |
Never summarily discharge an employee without taking the time to reflect upon the total situation. |
| b. |
Review any relevant company policies or rules. |
| c. |
If the problem is a serious matter, e.g. the employee threatened another employee with violence, consider suspending the employee pending investigation rather than immediately discharging without investigation. |
| d. |
Complete and document a fair and thorough investigation of the situation and, where appropriate, obtain written statements from any witnesses including the employee in question. As with discipline documentation, all investigatory and discharge related documentation should be drafted in a manner so that it can be understood by a 3rd party who doesn’t know anything about the situation. Keep all information confidential. |
| e. |
Obtain the employees’ account of what happened, including any defenses or mitigating circumstances. |
| f. |
Review the employee's past work record and performance. Does the documentation in the file support a discharge at this time? Do prior performance reviews support discharge? (Have prior performance reviews been inflated?) |
| g. |
Has the proposed reason for the termination been used to terminate others in the past, and have others committed the same offense and not been discharged? |
| h. |
If the employee is in a constitutionally protected category (age, race, religion, color, national origin, sex, marital status, military status, or disability), you must exercise care to ensure that the reason for the proposed discharge is not in any way related to the employees protected status. Determine if the employee has been the recipient of demeaning remarks, comments or actions related to his or her protected status. |
| i. |
Has the employee recently filed a workers’ compensation, harassment, or discrimination claim? |
| j. |
Has the employee recently complained about or "blown the whistle" on illegal activity within the company? |
| k. |
Who will replace the employee? Replacing an employee in a protected class with one who is not in a protected class could be evidence of illegal discrimination. |
| l. |
How long has the employee worked for you? The longer someone has worked for the company, the greater the risk in terminating them. |
| m. |
Consider whether there is a reasonable alternative to discharge and document that evaluation. |
| n. |
You must be able to show that the employee was treated fairly. |
2. Discharge Meeting
| a. |
Two employer representatives should be present at the termination meeting. |
| b. |
Give a clear and accurate explanation for the termination. |
| c. |
Explain any benefits the employee will receive upon termination. |
| d. |
Let the employee respond. |
| e. |
Document the termination conference carefully. |
| f. |
Do not make any reference to a protected class, counsel the employee, apologize for the discharge or argue with the employee. |
3. Additional Considerations
| a. |
Was the employee warned? |
| b. |
Was the employee given adequate opportunity to correct the deficiency that led to discharge? |
| c. |
Was the employee set up for failure? |
| d. |
Were the performance expectations reasonable? |
| e. |
Was the degree of discipline reasonably related to the offense? |
| f. |
Was the discharge handled in a dignified manner? |
| g. |
Keep in mind that jurors will always ask the question, "Would I want to be treated like that"? |
INSERVE has been addressing issues
like these for its clients for over twelve years. We are the
trusted advisor on whom they rely for personnel management
and administration issues. We would like to hear from you
if you need assistance in addressing those employee related
issues that directly impact the profitability and security
of your company.
|
|
