You thought you’d done your due diligence and found a great employee, but after a few months on the job, you can tell things aren’t working out. Perhaps the worker’s poor attendance or bad attitude is causing problems with other staff members. As tempting as it is to avoid the problem and hope the person leaves, it is bad business to not take action. By following a few basic steps, you can terminate an employee and protect your company.
Gather the Facts
Documenting the performance problems and the company’s responses, such as warnings and additional trainings, and keeping them in the worker’s file is the most important step in the process of terminating an employee. Keep a log that includes dates, times and relevant details, and be specific and factual. Do not include speculation or rumors reported by other employees, but do include situations observed by supervisors, direct-knowledge situations reported by coworkers and complaints by customers. If coaching or training has occurred, have the worker’s initial training documents as proof that steps were taken to intervene before the employment relationship was ended. Even if your business is an at-will employer, having the appropriate documentation is important both during the termination and for proof later, should the former employee file a lawsuit.
Avoid the Drama
When it is time to let a worker go, try to hold the meeting in a neutral, private place such as a conference room. There is no benefit to humiliating the person in front of colleagues. Have a summary of the performance documentation that’s been collected ready to help with the conversation. Once the news has been delivered, escort the employee to gather any personal belongings and then out of the building. Be sure and collect any access keys and company electronics, such as cell phones and laptops. To maintain security, suspend email accounts and change door entry codes. Do not leave a fired worker alone with company computers or sensitive files in case emotions overcome reason and the person tries to retaliate.
Know Your Limits
Even if you are an at-will employer with a policy that states you may let an employee go at any time, with or without a reason, there are situations that limit your ability to fire an employee. Anti-discrimination laws at the federal level prevent you from terminating a worker based on disability, religion, gender, race or age. State and local laws may add additional protected classes. You can’t fire an employee for acting as a whistleblower, or complaining about illegal or unsafe activities. You also can’t fire an employee who wants to take family leave, military leave or exercise other legal rights. For example, you can’t fire an employee for serving jury duty. Check with an employment attorney if you have questions. Money spent on billable hours could be much less than on a wrongful termination lawsuit.
Have Financial Details Ready
Do not neglect pay and benefit details that need to be finalized with the former employee. While there is a federal requirement to provide the final paycheck by the regular payday for the final pay period, your state may have laws that require payment even sooner. Be sure to explain the possibility of unemployment insurance to the fired worker. You aren’t guaranteeing that he or she will qualify, just sharing information about claim time limits. If your business is large enough, with 20 employees or more, you will also need to offer COBRA, the continuation of healthcare coverage paid for by the former worker. Any vested retirement benefits belong to the employee.
Firing an employee is never easy. Leaving a poor performing or disruptive employee in place, however, isn’t good for business. By documenting problem behaviors and knowing your rights as an employer, you will be able to terminate an employee while protecting your company.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.