Firing an employee may be necessary but if it’s not orchestrated with compliance, it could become a legal minefield. Disgruntled employees may retaliate with a variety of allegations, including discrimination, retaliation, wrongful discharge, wage and hour liability, defamation, and so on, and laying the groundwork for a compliant termination is the best move for your business. Here are seven ways employers can limit the risk of being sued for wrongful termination.
Keep job descriptions up to date
Make sure employees know what is expected of them by providing them with up to date job descriptions, polices and regular and clear communication on the expectations for their performance and behavior in the workplace. Many jobs titles and procedures can change often, and If the job description doesn’t fit the claims being made for termination, there is potential for legal action.
Use disciplinary procedures
Workplace policies are created to keep balance and fairness in the workplace, and anytime an employee violates a policy (no matter how small) it should be documented in their employee file. The incident does not have to be entered as a reprimand, it can remain as information that will offer constructive feedback during the employees review, and it also creates the necessary paper trail needed to validate a termination if necessary.
If the situation with the problem employee is at all unclear, conduct a thorough and unbiased investigation. You can’t fire people based on personality clashes or annoying behaviors unless it is impacting the organization, accountability, or performance. Conducting a thorough investigation will allow you to find the facts on the situation and decide if termination is the best option.
Keep accurate records
Each employee has a personnel file that houses all information (except medical or other sensitive personal information) about the employee and their job performance, good and bad. Below is a list of written documentation that needs to be in the file to assist in the decision for termination:
- An employee handbook describing unacceptable employee behaviors
- Policies describing the company’s right to discipline and terminate employees
- Job descriptions or other documentation that specify performance expectations
- Performance appraisals
- Records of disciplinary counseling and formal disciplinary action
- Written documentation of the findings of any internal investigation related to the termination
- Employee application for employment
The documents in an employee personnel file will be available for audit legally in the event a former employee sues the company. It is critical the information in the files be accurate, factual and not contain judgments or inflammatory statements about the individual.
Know the employment laws
It is illegal to fire someone because they filed a worker’s compensation claim, took FMLA, filed a grievance or a claim against management, and those are only a few examples. There are many employment laws put in place on a state and federal level to protect employees, and it is essential to know all of those laws.
Ensuring that members of a protected class (race, color, religion, nationality, gender, age, disability, etc.) are treated the same as any other non-protected employee up until and during a termination will keep your business compliant and out of court.
Terminate in private
Conduct the termination face to face, in a private setting and have at least one other company representatives present to act as a witness.
A termination meeting should last no longer than 15 minutes, and the dialogue should be kept simple, factual, and direct. Let the employee know they are being terminated because they have failed to meet performance expectations or to remedy other problems that you had already addressed with them. If the employee brings up new information that you think may change things, let them know you will investigate it and revisit your decision later, otherwise, make it clear that the decision is final.
One of the most important things to do in the termination meeting is to treat the employee with dignity and respect, no matter their reaction to the news. It is natural for the employee to have an emotional response, and it is important to show sensitivity to their reaction. Wishing the employee success in future endeavors, and being willing to speak with the employee after the meeting to answer questions about his or her transition out of the company is a kind gesture to complete the termination.
In conclusion, despite the awkwardness and discomfort that comes with, dismissing an employee, it can create several positive results for the organization. A respectful and compliant termination will shine a light on the leaders of your business as they model the behaviors everyone else is going to follow, building a culture of respect, accountability, and trust.