The decision to terminate an employee isn’t made lightly. In many instances, a supervisor or business owner has agonized over the decision and done everything they can to avoid this final outcome. But once the decision has been made, as an employer, you have many legal pitfalls that can lead to litigation, especially if the employee feels that they have been ‘wronged’ or their termination is not justified.
Moreover, on the day of the termination, you may likely be very nervous. Therefore, it’s a good idea to enter this meeting prepared and organized. The following checklist can help you keep your thoughts organized, remind you of all topics so that you don’t forget anything, and help you avoid any legal challenges to the termination.
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- Review the company’s policies and documents. Your company’s policies and procedures may limit the circumstances in which termination is justified. For instance, if you have progressive discipline policies, internal dispute resolution/arbitration policies, or termination policies requiring ‘just cause,’ you may have to verify that you are legally eligible to terminate the employee for the reasons you think warrant termination. In instances where these policies exist, you may have to go through the outlined procedures before considering termination.
- Consider oral or implied contracts. In addition to written agreements, oral agreements can be a huge legal problem. If you have promised the employee some oral guarantee of employment, it can be just as binding as a written contract. In these instances, you will want to consider whether the termination is a breach of the oral or implied contract of employment. Implied contracts can be created using a number of factors, such as long-term employment, promotions, commendations, the absence of performance criticism, and any other indicators of job security.
- Review state and federal employment laws. There are many laws protecting employment for individuals, including the Americans with Disabilities Act or California’s Fair Employment and Housing Act. These laws may vary based on the state where your company is located, so you will want to be diligent in your research to ensure you apply the correct laws and regulations. In instances where these laws may be applied, you will want to ensure that you are following all of the legal requirements and can document that they are being terminated for an appropriate reason rather than a protected reason.
- Verify documentation. You will also want to look at the documentation to verify you can support termination. For instance, if the employee is being terminated for missing work excessively, you will want to have documentation related to their attendance so that they cannot claim it’s for another reason or as retaliation. You should also compare their file to other employees’ files to ensure that you are applying the rules fairly. If you are letting another employee off with a warning for the same performance that this employee is being terminated for, they may have a compelling legal argument. You should also have documentation that they have been warned or have had other disciplinary actions taken before escalating to termination.
- Wrap up the documentation, access, and items. Before heading into a termination meeting, you will want to have the employee’s final paycheck printed and bring any relevant legal notices or insurance and benefits information to the meeting. Having these items ready allows for a clean break and ensures that an angry ex-employee doesn’t have to come back to the workplace. Additionally, you will want to review the policies for collecting any work-issued items, such as a laptop, access keycard, uniforms, other devices, credit cards, or uniforms. Immediately after the meeting or while it is in progress, you can work with your IT staff to disable any access rights or accounts so that the employee is immediately cut off from all company resources. There have been instances where an angry ex-employee returned to retaliate. This action is much harder if they aren’t permitted any access.
- Conduct an exit interview. If appropriate, you may want to get the employee’s feedback on the workplace and any aspects of their employment.
- Determine eligibility for unemployment insurance. Terminated employees may be eligible for unemployment insurance unless the termination is for refusing to perform reasonable duties or misconduct. An inability to perform duties adequately is not considered misconduct.
Terminating an employee is often a dreaded task. But, failing to terminate an employee who is consistently underperforming and is non-responsive to interventions or one who is angry or violent can be a legal liability. And unfortunately, there are some instances where termination is unavoidable. If you find yourself in a situation where you must terminate someone, it’s always a good idea to be prepared. To learn more about terminations and employer responsibilities, contact CA HR today!