Making the decision to terminate an employee is never an easy one. Cases where someone has a documented history of poor performance, or where they broke a major company policy, seem like clear reason to let someone go. However, there are far more nebulous reasons to terminate an employee and it’s not always clear what your rights are and how you can protect yourself during those difficult discussions.
At the most basic level, almost all states allow employers to suspend, demote, or fire employees as they wish. In fact, they don’t even require that you provide a reason for the termination unless said employee has it in their contract that they be given a reason! Still, you have to follow what we call “common sense guidelines,” meaning that you can’t fire an employee based on their age, race, religion, nationality, gender, presence of disabilities, sexual orientation, or other discriminatory practices.
So, when can you let someone go and what should you do to protect yourself?
Document indiscretions: As we noted above, you don’t technically need a performance-related issue to let someone go, but if you are cutting ties because someone isn’t up to snuff, you should be sure that their failure to fulfill the responsibilities of their role is well documented. In addition to identifying the issue, you’ll also want to document how you addressed it and what, if anything, came of the intervention. What you’re looking to do is build a case that you attempted to fix the problem with the employee and the issue was not resolved, leaving you no other choice but to part ways.
Check the details: If you signed a contract when your employee came on board, be sure to bring that contract back out and go through it with a fine-toothed comb to see if you included a section that lays out under what circumstances a termination can take place, how many warnings they might have to receive, and even what remedial steps you might have to take before attempting to sever ties.
Check your laws: As we touched on above, you can’t fire folks based on discriminatory reasons, but sometimes it isn’t always as obvious as you would think. For example, employees who take leave under the federal Family and Medical Leave Act (FMLA) are protected from being let go during the duration of their leave, as are those who are pregnant, or who have restrictions placed on their job duties based on medical necessity. Further, it should be noted that you can’t fire a person who has filed a complaint that YOU are discriminating against them (at least until you can prove that you aren’t discriminating against them, after which, you can fire away!)
Do your paperwork: Firing someone is more than just an awkward conversation – instead, you have to have the conversation and make them hang around to fill out a bunch of paperwork! In some states, for example, your employee has to fill out a document stating that the reason why they are being fired has been explained (cringe!), while in other states you have to sign a form stating that you’ve explained what (if any!) benefits they are eligible for, and even who they should contact if they think you’re in the wrong with your decision!
Have a buddy present: To prevent a he said, she said situation, you should always bring a second person into any termination discussion. The obvious choice would be a human resources rep, but if they aren’t available, you could also turn to the person’s direct supervisor or manager to sit in. Essentially, this person will bear witness to the conversation and lend support, but should also be clued in to what they can legally say during the course of the meeting so as to not derail the conversation and steer it into murky legal waters.
Plan to pay out: This may seem silly to mention but paying your employee for the last few weeks worked – particularly if it’s an off week for payroll – can quickly slip through the cracks. However, you are not only required to pay the employee, but you must do so in a time span that is considered “reasonable.” While this is sort of nebulous in terms of what this means, you would be wise to pay them at the earliest payroll opportunity possible.
Don’t wimp out: Having that termination conversation with an employee is never fun but failing to fire an employee who is deserving of being let go can also land you in legal hot water. This holds especially true if you were planning on firing them for threatening, bullying, or even violent behavior as it can violate your legal commitment to protect your other employees and leave you open to liability lawsuits.
Consult a lawyer: Sometimes this step might seem like overkill, and in most cases it is, but for the one instance where someone files a retaliation lawsuit, it is so worth it to have consulted with a legal higher up to know that you’re decision to fire them is sound and that you have all of your ducks in the row to do it right.
When partnered with Abel HR, we are one call away for all of your HR needs, especially when you are concerned about terminating an employee. Call 609.860.0400 and we will be able to guide you through all of the rules and regulations.
