Proper Employee Termination Procedures

Terminating an employee is one of the most unpleasant aspects of a business owner or supervisor’s job duties but sometimes it is absolutely necessary

If terminating an employee is necessary, then it should be performed in the most ethical, and professional manner possible

Following the proper protocol in conducting the termination often times softens the blow of the terminated employee who is often surprised that they are being terminated and you protect the business from potential litigation arising from the termination<

There are a wide variety of proper justified reasons why employers would terminate an employee

As long as those reasons are not impermissible in accordance with state and federal law then the question of whether or not to terminate an employee is dependent on the facts and circumstances of each case and the business judgment of the employer in charge

If you have an established system policy of progressive discipline like written warnings prior to termination these four major steps must be assured before the act to terminate an employee

Employment at will policies

Progressive discipline policies

Internal dispute resolution or arbitration policies

Termination policies requiring just cause

Do you have an established policy of giving a certain period of notice before terminating an employee?

Will this termination breach an oral contract of employment? 

An oral contract may have been created if the employee was told her job was secure or that she would always have a job if she did a good job or some other similar guarantee of employment

An oral contract can be created by anyone in the company with authority over the employee and this means that the company may be held to a supervisor’s promise to an employee of secure employment, even if the supervisor did not have the company’s authorization to make such a promise

Will this termination breach an implied contract of employment? 

An implied contract of employment may have been created by a combination of these factors

Long term employment although there is no specific number of years considered and many attorneys use five years as a guideline

Evidence or indicators of job security for the employee such as promotions, commendations, lack of criticism of the employee’s performance or other indicators of job security

State/Federal Laws Protecting Rights Of Employees

Is the employee physically or mentally disabled?

If so were attempts made to reasonably accommodate the employee’s disability?

Were reasonable accommodation measures well documented? 

Is the employee being treated in the same manner as other employees in similar

situations?

Have other employees been given more chances before being terminated for the same or similar reasons as this employee?

If so are there legitimate non discriminatory reasons for treating this employee differently than other employees? 

Is the employee pregnant? Employees are entitled to four months off for pregnancy related disabilities

Has the employee filed a workers compensation claim? Terminating an employee who has filed a claim, intends to file a claim, or has testified in a workers compensation hearing could be considered workers compensation discrimination

Has the employee reported any illegal activity of the company to a state or federal agency? 

Even if the company is not in fact acting illegally, the termination could be seen as retaliation for whistle blowing

Has the employee participated in any official investigation of the employer wage or safety violation or testified against the employer in an unemployment insurance or other hearing?

Is the termination in retaliation for the employee’s exercise of protected personal rights, such as freedom of speech or political activity? 

Is there sufficient documentation in the file to substantiate your reasons for termination? 

Examples include written warnings, performance reviews and attendance records

Is there anything in the file that might be evidence of an illegal termination? 

For example a supervisor may have written a warning notice to the employee that her pregnancy was causing her to be absent too often. 

Legal counseling should be consulted if there are concerns

A terminated employee may be eligible for unemployment insurance unless the termination is for refusal to perform suitable work or for misconduct

Mere inability to perform the duties of the job is not considered misconduct

The cost to your unemployment insurance reserve account may be far greater than the cost of providing the employee with necessary training or performance counseling

Failing to terminate an employee who has been violent or threatened violence could result in harm to other employees and lead to employer liability

Termination of an employee who has sexually harassed other employees may be necessary to fulfill an employer’s legal obligations under sexual harassment laws

If the decision to terminate lies not with the economic impact of continuing to employee a worker on the business bottom line, but rather with the employee’s job performance, the employer is well within its rights to terminate an employee

In these types of cases, information such as written performance evaluations or disciplinary notices should be gathered from employee’s personnel file

If there is no formal documentation it might be better to postpone the termination decision until documentation is available

Such documentation may become valuable evidence later on to refute claims of wrongful termination

The employer should also consider whether or not the employee has a legitimate excuse for their poor performance, whether or not employees who were guilty of similar performance issues in the past were also fired, and whether or not a lesser action such as a reprimand or write up should be used in conjunction with a warning or probationary period

A very important consideration for the employer to consider prior to termination is

whether the employee’s poor performance is due to a disability of the employee that with reasonable accommodation the employee could properly perform the essential job functions of their employment

If this is a consideration the employer should immediately discuss the termination with competent legal counsel prior to the termination

These terminations are fraught with peril and often, when improperly performed, lead to lengthy and expensive litigation

Whether or not a certain employee can be terminated is an inherently legal question that is generally best answered with the assistance of counsel ot human resources

As mentioned above the general rule is that employers may generally terminate employment at will

However, there are important exceptions to this rule

Some employees, such as executives and professionals, have written employment

contracts which stipulate that the employer may only terminate the employee by way of a vote by the board of directors, for good cause, or for some other specific reason and cannot terminate their employment at will

Another form of contract which may limit the employer’s right to terminate arises when the employee in question is a member of a union

If that is the case the collective bargaining agreement or “CBA” usually controls the question of whether or not the employee may be terminated, delineates the circumstances under which they can be fired and the procedures that must be followed in order to do so

In union cases the CBA must be consulted along with an attorney familiar with its provisions and processes

Both state and federal law prohibit termination of employment on the basis of age, race, national origin, religion, gender, physical disability, or sexual orientation, as well as several other protected categories

These characteristics may not be taken into consideration when making the decision to fire an employee

For example, the physical disability issue, mentioned above, often arises when an employee goes out on medical leave

During that period of time, the employee may not be terminated because of their absence

Similarly if an employee is injured or ill but is still attempting to work under a doctor’s restrictions, the employer must offer them reasonable accommodations for their disability or medical condition so long as they are still able to perform the essential functions of the job

 It is also impermissible for an employer to terminate an employee for filing a workers compensation claim due to a work related injury

There is no way to inform an employee that he or she is being terminated without the risk of inflicting some emotional pain

Thus the employer must clearly state the reason for termination with the utmost care and evidence

An employee whose feelings are badly bruised or who feels slighted will be more likely to seek out a lawyer and explore a wrongful termination suit

 A short statement indicating that it is no longer in the best interest of the company to continue the employment relationship suffices and nothing more should be said to the employee

Any explanation of why an employee is being terminated leads to further questions and the employee is not likely to believe what the employer is stating in any event

Rather the employee is already starting to determine whether sufficient information exists to file for unemployment benefits as well as to determine whether the employer is firing them for cause or as a pretext for some other impermissible reason such as race or sexual orientation

It is also considered good practice to have the employee’s direct supervisor be the one to inform the employee of the termination, and have a member of the company’s management team or human resources department and/or an attorney present as well<br>

This will demonstrate that the decision was made collectively, rather than by an individual, but nevertheless with input and approval of someone who has firsthand knowledge of the employee’s job performance. 

It may also reduce the risk of physical violence

One school of thought holds that employers should carry out terminations on Fridays

Assuming that the employer’s office is closed over the weekend, it will give all parties involved a few days apart to allow emotions to cool

It will also reduce the risk of an angry employee showing up the following day and disrupting work

Another school of thought believes that terminations should be done early in the week in order to give the terminated employee an opportunity to start looking for a job, applying for unemployment benefits, and making other necessary arrangements as soon as possible, rather than stewing with frustration and anger and no outlet for positive action over the weekend

A third school of thought believes that it should be done at the end of a pay period

Experience is that it does not make a difference or change the outcome of the termination. rather, once the decision to terminate an employee is made by the employer, the timing of the termination should be immediate and carried out prior to the end of the work day if possible

If not, then the termination should be conducted at the start of the following work day for which the employer will still have to pay the terminated employee all outstanding wages, salaries, expenses, and unused vacation pay owed to the employee must usually be paid immediately upon termination

Note that it is improper to condition receipt of the final paycheck upon an agreement by the employee to waive their right to bring suit, and tendering of the final paycheck should not be confused with severance pay

The employee is already legally entitled to all wages earned as of the date of termination and attempting to deprive them of such pay for any reason may be construed as in violation of the law

At the termination meeting, the employer should ask for the employee to immediately turn over all company property that they have in their possession which includes key cards or keys and other devices used for employee access to the company’s premises as well as any other company property that the employee has at their home or work station

The employee must also be notified that they have a duty to maintain the confidentiality of all company trade secrets and passwords

Care should also be taken to delete and remove the terminated employee’s name from company letter head, stationary, e-mails or websites following the termination

You should also have the employee review all signed agreements from their time of hire to remind them you intend to enforce these agreements

If the employee is leaving on good terms and has a history of good job performance, the employer should provide that information to future potential employers upon request

If the employee is leaving on bad terms or has a history of poor performance, they will not be likely to use the employer as a reference on future job applications

If a fired employee still lists them as a reference, the employer should limit their comments to the bare minimum information, stating no more than the employee’s dates of employment, job title, and salary

This will reduce the risk of liability on the part of the employer for defamation

It is a misdemeanor to make negative false statements about a former employee to a potential hirer

However you are protected from defamation if you give fair, honest balanced feedback regarding past employees