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Firing An Employee

HandelontheLaw.com Staff Writer

Monday, March 24, 2014



Firing An Employee
Fired

The decision to fire an employee can be a tough one and as with most business decisions, a policy should be generically planned long before the employer is confronted with this sometimes unpleasant task. One widely used modern euphemism for employee firing is “employee separation,” which is more genteel yet exquisitely accurate: a fired employee is certainly separated from you, the company, other employees, a job, a paycheck and benefits. A Separation Policy must be well-planned and effectively communicated to avoid some common pitfalls of employee separation. Most employees, absent a collective bargaining agreement, are “at will” employees. However, employees still sue under several theories. To avoid successful suits by former employees, the company must take care to treat different categories of employees the same to avoid successful discrimination suits; terminate the employee only for lawful reasons to avoid successful wrongful termination suits and take care about communication of the facts to third parties to avoid a successful defamation suit. Furthermore, supervisors and managers must be well-informed regarding different theories under which the company may be sued by a former employee and continually reevaluate and refine the procedures to safeguard the company against successful suits.

The world’s first firing was probably created very shortly after the world’s first hiring; consequently, specifics of a separation policy have been developed by innumerable companies over many decades. These measures actually commence long before the employee is even hired, to ensure that the company refines and maintains focus on its core values, and to ensure that every phase of an employee’s association with the company coincides with the company’s core values and legal requirements.

First, a 3-month training phase in which the employee is sufficiently prepared to perform the job, is observed for performance, has skills improved where lacking and is evaluated as to whether he/she is a good fit for the company.

Secondly, education of the Human Resources supervisor and manager education to avoid successful wrongful termination suits, which would involve a working understanding of:
a) the At-Will Employment Doctrine, its modifications and exceptions, including constructive discharge, implied contract, statutory restrictions, covenant of good faith and fair dealing, public policy, employment contracts, collective bargaining agreements, special provisions for disabled employees, special public policy protections for whistle-blowers, and the employment torts of discrimination, wrongful termination and defamation;
b) Statutes protecting the job and benefits, including but not limited to: Family and Medical Leave Act of 1993 (FMLA); Uniformed Services Employment and Reemployment Act of 1994 (USERRA); Worker Adjustment and Retraining Notification Act (WARNA); Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA); Older Workers Benefit Protection Act (OWBPA); The Employee Retirement Income security Act; ERISA plans;
c) Adequate grounds for termination, including but not limited to: gross insubordination, subpar performance; excessive absenteeism without excuse, and workplace violence;
d) The company’s core values, such as: excellence, honesty, integrity, reliability, fidelity, fairness, caring, respect, citizenship and accountability. The communication and support of these values is vital as they create a corporate culture in which all are evaluated and treated ethically, even up to the point of termination;

Third, careful documentation of: the employment agreement; employee-signed documentation of every incident in which he/she must be corrected; consistent, careful documentation of each incident of malfeasance to build a credible case for dismissal; careful documentation of the termination meeting’s specific aspects.

Fourth, speedy, precise and well-documented information to each employee to let him/her know that performance is lacking, how it is lacking and how it must be improved.

Fifth, a performance-improvement plan for employees whose performance is lacking, which will give the steps for improvement and a feasible timetable for improvement, along with any necessary mentoring for the improvement.

Sixth, when deciding whether to terminate an employee, his/her work history and the circumstances leading to his/her possible termination should be reviewed, along with any ethical issues surrounding the dismissal, the effects the termination will have on all stakeholders (management, other employees and clients), and possible alternatives to separation, including: lower incentive payouts, salary freezes, voluntary salary cuts, temporary layoffs, reduction of workweek hours, job sharing, severance pay plans, and/or outplacement services.

Seventh, a termination checklist including all pertinent considerations to treat the terminated employee with respect, protect remaining employees’ morale and preserve the company’s relationships with clients should be provided and precisely followed in every case of separation. This ensures uniformity and documentation.

Eighth, in the case of termination, whether voluntary or involuntary, a face-to-face, private and direct meeting with a superior who frankly tells the employee why he/she is being terminated, so as to preserve the dignity of the individual being terminated.

Ninth, in any case of termination, the person’s paycheck or proof of direct deposit, payment(s) for unused vacation and vested cash benefits, advance notice and benefits data should be ready at the termination meeting.

Tenth, in the case of a potentially harmful/violent involuntary termination, company security should be alerted and used, the employee should be immediately escorted to remove his/her possessions, the employee should not be allowed to touch company property such as computers or to make phone calls or speak to other employees, and the employee should then immediately be escorted from the premises.

Eleventh, in order to preserve the morale of remaining employees and the company’s relationships with its clients: the terminated employee should be treated fairly and respectfully; the specifics of termination should be promptly discussed only with remaining employees who need to know the circumstances and with clients who are strongly associated with the terminated employee; other employees should simply be told that the employee is no longer with the company and no discussion should be made about the terminated employee’s character or motivation.

Twelfth, in order to keep improving the procedures, review the company’s recruiting, hiring and managing policies, along with the company’s relationship with the terminated employee: was he/she unqualified; were gaps in expertise or experience overlooked in hiring; how can the recruitment and hiring procedures be improved to detect gaps in expertise and experience; how should training and other forms of performance support be improved.

As these steps indicate, Employee Separation Procedures involve much more than merely firing an employee. These policies and procedures can also provide opportunities for considerable company growth and improvement.


DO’S AND DON’TS

DON’T be intimidated by the people or the process.

DO establish an “Employee Separation” Policy in line with your company’s core values and legal requirements.

DO establish a 3-month training phase to train the employee and see whether he/she is a good fit for the company.

DO educate your Human Resources supervisor and manager education to avoid successful wrongful termination suits, which would involve a working understanding of:
a. The At-Will Employment Doctrine, its modifications and exceptions;
b. Statutes protecting the job and benefits;
c. Adequate grounds for termination;
d. The company’s core values.

DO carefully document regarding the employee agreement, every incident of correction, every incident of malfeasance, and the termination meeting.

DO provide speedy, precise and well-documented information to each employee about subpar performance, how it is subpar and how it must be improved.

DO prepare a performance-improvement plan for employees whose performance is lacking.

DO review an employee’s work history and the circumstances leading to his/her possible termination, along with any ethical issues surrounding the dismissal, the effects the termination will have on all stakeholders and possible alternatives to separation.

DO prepare a termination checklist including all pertinent considerations to treat the terminated employee with respect, protect remaining employees’ morale and preserve the company’s relationships with clients.

DO have an employee terminated by a face-to-face, private and direct meeting with a superior who frankly tells the employee why he/she is being terminated.

DO prepare the person’s paycheck or proof of direct deposit, payment(s) for unused vacation and vested cash benefits, advance notice and benefits data before the termination meeting and have it at the termination meeting.

DO, in the case of a potentially harmful/violent involuntary termination, alert and use company security to immediately escort the terminated employee to remove his/her possessions, and then immediately escort the terminated employee from the premises.

DON’T allow the terminated employee to touch company property such as computers or to make phone calls or speak to other employees.

DO treat the terminated employee fairly and respectfully.

DO promptly discuss the specifics of termination only with remaining employees who need to know the circumstances and with clients who are strongly associated with the terminated employee.

DO simply tell other employees (who do not need to know the circumstances) that the employee is no longer with the company.

DON’T discuss the terminated employee’s character or motivation.

DO review the company’s recruiting, hiring and managing policies, along with the company’s relationship with the terminated employee in order to constantly hone your recruitment and hiring practices, employee training and performance support, and Employee Separation policies.

By Kathy Catanzarite


[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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