We have all heard the horror stories. Company XYZ hired their next “star employee” and everything was great for the first few months. Then they really got to know the person. Now they wish they hadn’t hired this so called “star” and want to terminate as soon as possible. It happens to the best of us. No matter how solid your hiring practices and employability radar are, bad hires happen.
If, or perhaps I should say when you find yourself in this position, remember these ten tips to try to prevent a lawsuit. After all, you will be spending enough of your time and hard earned money just to replace the person. The last thing you need is to spend hours digging for the documentation to support your decision and paying an attorney to defend it in court.
1 – Have a company handbook issued to every employee with expectations and disciplinary procedures clearly spelled out. Be sure to include an “At Will” employment policy, if in fact you are an at will employer. Have all new hires sign an acknowledgement that they understand and agree to abide by these policies or they will face disciplinary action accordingly.
2 – Issue clear warnings to all employees (not just the bad hires) when expectations are not met and/ or procedures are not followed in accordance with the handbook. Written warnings with employee signatures that go into their personnel file will ensure the employee understands the severity of the situation and gives them an opportunity to correct the behavior. Upholding these policies regardless of who is violating them will show you are consistent and fair in your disciplinary actions, which will help if the employee claims you discriminated against them.
3 – Investigate. Use due diligence to determine if there is an explanation for the employee’s unsatisfactory performance or behavior. Ask around to determine if there were extenuating circumstances that need to be considered.
4 – Interview all Supervisors of this employee to ensure the employee has not made any negative comments or brought any concerns to their attention. If the employee’s behavior is a result of discomfort because they have felt harassed, unfairly treated, or felt unsafe and they informed a supervisor of the situation, the termination could result in a retaliation claim. This means the employee feels they were terminated for complaining about the harassment, unfair treatment, or unsafe condition. Terminating them in retaliation for speaking up or taking FMLA is against the law.
5 – Collect and review the documentation that supports your decision- ALL of it! Do not put off filling out the necessary documentation. Your memory will not be the same a week later, if you even come back to it that soon. Once you have all the documentation, compare the situation to similar ones, specifically how those employees were disciplined and how many prior warnings had been in their files. Then keep it all together in their personnel file in the event you need to refer back to it.
6 – Seriously consider all employment laws, especially the American’s with Disabilities Act, Anti-discrimination laws, and the Family Medical Leave Act. Even if you know the termination has nothing to do with an employee’s protected class, the courts may not agree. If there is even a slight chance that some one may believe the termination is related to an employee’s disability (or regarded disability,) discrimination, or leave of absence it would be in your best interest to consult your attorney.
7 – Do not wait to long to terminate. This is important for a couple of reasons. First, you do not want to give the employee more opportunities or time to do damage to the company. Secondly, if other employees feel like this employee is getting away with something, it will bring down the morale of the group, decreasing their productivity. And last but not least, if a long amount of time has passed since the incident happened that you wish to terminate for, the employee may be suspicious of your reasoning and contact an attorney.
8 – Plan for the meeting. As mentioned earlier, have any documentation or “proof” ready in the event the employee denies allegations or asks to see it. Know what you are going to say and think about how they may respond so you can be prepared for any situations that may arise. Also, have a witness present whenever possible. If the employee gets violent or claims you said something that you didn’t say, this person will be able to defend your position.
9 – Keep your focus during the termination. Treat them with respect and explain exactly why you are terminating. Keep your cool and do not apologize for the decision. You may however, wish them well on their way out the door.
10 – Ensure final pay/ wages and COBRA notices are delivered to the terminated employee as timely as possible. This includes any unused sick, personal and/ or vacation time (according to your company policy.) You obviously do not want to give them any additional ammunition.