Patricia
Despite everything that is going on in the world, jobs and payrolls rose in the first quarter of 2022. While there’s no real shortage of talent, sometimes even the most promising talent turns out to be a dud once they’re a member of your team. What do you do when it is clear that you’re going to need to fire an employee?
Legal employee termination is not always as simple as telling them that you’re letting them go. Read on to learn how to properly terminate an employee!
At-Will Employment
The first thing you need to know is that most employer/employee relationships in the United States are presumed to be “at-will.” The only state that does not have this presumption is Montana.
Throughout most of the world, employers can only terminate employers for cause, but in the US, employers can dismiss an employee for anything from personality differences to excessive absences. That doesn’t mean that states and individual employers cannot adopt laws and policies that enhance the protections employees have, however.
Contract Employment Considerations
Some employers utilize employment contracts. They detail the length of time the employee will work for the employer, the employee’s salary, and the benefits associated with the position. Contracts also lay out the job duties and the required qualifications for the position.
If you need to terminate a worker who has an employment contract, then you may have to follow a specific procedure. Some employers opt to simply buy out the contract to avoid unnecessary conflict. Speak with your company’s attorney to make sure everything is done correctly in these instances.
Documentation Is Key
In the world of employment, documentation is everything. In fact, if you don’t document something, it’s basically like you never had a particular conversation.
Let’s say you receive a complaint that Employee A has been falling behind on their sales quota. It might feel natural to pull that employee aside and give them a pep talk, and hope that that solves the problem. A better alternative, however, would be to shoot the employee an email with their current sales production compared to their expected production.
That email protects you in the future if the employee continues to fall behind on sales. You’ll be able to point to the written conversations you’ve had when you speak to HR or your supervisor about terminating the employee. It’ll also protect you in the event that the employee files for wrongful termination.
Give Your Employee the Opportunity to Fix the Behavior
Unless your employee has done something particularly offensive, it’s important for you to give the employee the opportunity to fix the problem they’re having before you give them the ax. There are a couple of reasons for this.
First, some employees have a few kinks to work out, but are ultimately successful with the right guidance. If they’re otherwise a good fit for your office, and they appear to want to put in the work, give them some time to fix the behavior before firing them. As an added bonus, this will improve employee morale, because they won’t have to constantly worry about job security.
Another reason to give an employee more time is because of the time and expense that comes with employee turnover. You’ll have a vacant position that’ll you’ll need to fill, which takes time and money that could be spent elsewhere.
Review Your Company’s Termination Policy
If you know that a particular employee has to go, then it’s time to go over your company’s termination policy. This will help protect you and anyone else involved in the termination. Following the policy to the letter means that the employee won’t be able to come back and claim that they were wrongfully terminated and try to appeal the decision.
Don’t have a termination policy? It’s definitely time to draw one up to use in the future.
Be Wary of Potential Discrimination Claims
One of the many factors to consider when hiring a business lawyer for your company is whether they can help protect your company from discrimination claims. That’s because thousands of claims are filed with the US Equal Employment Opportunity Commission every year claiming that an employer has discriminated against them on the basis of a protected class.
A protected class is a characteristic like sex, race, religion, national origin, age, disability, and many more. If someone is treated adversely because of their protected class, then the employer violated the law. All of your employees, particularly those with supervisory and HR duties need to have a firm grasp of Title VII anti-discrimination laws to keep your business out of hot water.
Fulfill Your Legal Obligations
Your legal obligations to an employee don’t end the second you hand them their termination letter. Be sure to speak with the terminated employee about their options with regard to COBRA health insurance, their last paycheck, and unemployment benefits. You should also ensure you have a valid mailing address for when tax season rolls around.
Considering denying unemployment benefits? While you might be able to do that, you might also face legal claims for discrimination or wrongful termination. Choose your battles wisely.
Do You Need to Fire an Employee?
Making the decision to fire an employee is not always an easy one.
It’s often the result of a pattern of behavior that’s been occurring for a long period of time. Whenever the issue of termination comes up, the best thing you can do is to document the behavior as far in advance of the termination as you can, and you’ll be good to go. If you have questions about legality, don’t hesitate to contact legal counsel to make sure you handle everything correctly.
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