Although terminating an employee isn’t something most managers want to do, sometimes it has to happen. For both new managers and more experienced ones, it’s imperative to cover all of your bases in order to prevent liability to the company, avoid a hit to the rest of the team’s morale, prevent customers and clients from leaving, and to prevent undue hardship on the employee that is being terminated.
Here are some important steps to help reduce legal exposure during the termination process and ease the burden for all parties involved:
Know Your Company’s Policy
Prior to doing anything else, know your company’s HR policies and procedures inside and out. This is where most companies get themselves into trouble. Knowing your policies and following them is critical to avoiding liability. Your employee handbook is a guide for your behavior as well as your employees. It’s very likely that your handbook clearly spells out what infractions warrant immediate termination (workplace violence, safety issues, etc.) and those that don’t (tardiness, performance, etc.). After identifying your company’s procedures for dealing with the employees’ infractions, make sure that those procedures are applied across the board. Disciplining an employee for the same behavior that is being ignored in another, can open you up to allegations of discrimination.
Document the Employee’s Behavior
Keep careful records of the employee’s performance related and disciplinary issues. It’s important to keep your documentation objective and strictly related to their job and performance related concerns.
Speak with the Employee Directly
It’s important that the employee understands what they are doing wrong and has an opportunity to change unless their infraction warrants immediate termination. Speak with the employee privately, or in the company of those directly concerned (the owner, immediate supervisor, hr consultant) and make sure the rest of the staff can’t overhear the conversation. Clearly, spell out the disciplinary or performance-related issues, give the employee actionable steps to make changes, and define any consequences (termination, suspension, etc.) for the issues not being fully resolved. Your HR policies might call for a formal written or verbal warning, make sure that you take those steps at this time.
Provide the Employee with The Tools to make Changes
After speaking with the employee directly, carefully consider if there are any tools you can make available to the employee to assist them in making the needed changes. Are there reasonable accommodations that you can make? Is there training available to help the employee perform better? Ask yourself if there is any reasonable thing you can do to provide the employee with the tools that they need to succeed?
Get to Know Related Employment Laws & Potential Legal Issues
Although most states are employment-at-will that doesn’t mean that terminating an employee won’t come with legal headaches. Some of the employment laws that you may need to consider are Anti-Discrimination laws, the Fair Labor Standards Act (FLSA), the Uniformed Services Employment & Re-Employment Rights Act and your specific state laws, including workers compensation, if applicable.
Determine if Termination is the Appropriate Course of Action
Ask yourself the following questions: Is the reason for termination is business related? Does the termination consider state or federal employment laws? Has the employee been made aware of the problem and have they been given ample time and opportunity to correct the problem? Is there appropriate documentation of the issues and actions that have led up to termination?
Although firing and employee may make you feel like you are putting your company at risk, following a pre-determined course of action, that you are sure is in compliance with all applicable employment laws, can significantly reduce your company’s exposure to liability.
Deana Arnold, is the founder and acting President of Employers Advantage, LLC. Employers Advantage helps small business owners and nonprofits with compliance related hr services and full-service hr outsourcing, including terminating employees, hr policies and procedures, and custom employee handbooks.