Telling an employee not to report for work tomorrow is a nerve-wracking task, no matter how many reasons you have for terminating employment. Employers often feel apprehension, dread or even outright panic as the final confrontation approaches. Whether a terminated employee is tearful, desperate or furious, it’s up to you to keep the situation calm so both of you can move on.
As practice owners know, it can be risky to terminate an employee without due diligence. To avoid lowering morale and giving rise to accusations of wrongful termination, employers and managers must take care in reviewing employee performance and documenting problems before taking the final step of termination. Following is a simple breakdown of what you need to know—and do—to properly and tactfully fire a problem employee.
Many employers think that if they claim “at-will” status for their employees—by which you can fire someone with or without reason or notice—and document that in their employee handbooks, they have all the protection needed to terminate employment. While this is helpful, it isn’t a bulletproof shield.
There are a host of reasons for which you cannot terminate employment, and you need to be familiar with all of them.
First, you cannot fire someone because they are in a protected class, which includes race, religion, ethnic origin, mental or physical disability, pregnancy, age, gender, sexual orientation, marital status and veteran status. Additionally, employers cannot fire an employee in retaliation for participating in a protected activity. Protected activities include discussion of wages, complaints of workplace harassment, filing a workers’ compensation claim, reporting an OSHA violation and similar activities.
To complicate matters, nearly every employee falls into one protected class or another, or has participated in some protected activity. In 99% of cases, this has nothing whatsoever to do with why an underperforming or poorly suited employee is fired. But it is important for employers to make sure their reason for termination is not related to one of these issues.
Let’s be clear: You do not have to keep a terrible employee on the team forever because she’s pregnant or because he hurt himself at work. However, even as an at-will employer, you want to exercise caution whenever you think you might need to terminate an employee who falls under one or more of these categories. Consult with your HR expert as soon as termination starts to make sure you are doing everything you can to mitigate the extra risk. It should be crystal clear to any observer (or investigating agent) that any disciplinary action or termination was not retaliatory or discriminatory.
Documentation Is Your Friend
In order to protect your practice against wrongful termination suits and unemployment claims, it is safest to support every termination with a paper trail. Keep your employees’ personnel files in order and up to date at all times. If the employee is engaging in problematic behavior—such as missing work, perpetual tardiness or creating a hostile work environment—document your (sometimes repeated) attempts to coach the employee as well as all requests you made to the employee to change their behavior. Each note should be dated, legible, specific, unbiased, supported and signed by the employer. During any written corrective coachings, the employee should also sign the notice “acknowledging” the conversation and requested behavior or performance improvements.
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