In today’s litigious society, employers carry the dual risk of retaining unfit employees and releasing employees without taking the necessary precautions. How to survive this double-edged sword? Taking these incremental steps can assist to hedge this risk by ensuring that essential consideration has been given to the pertinent factors in the firing process.
Five tips for the firing process:
1. Assessing the Legal Environment.
Employers should make a thorough pre-assessment of the employee’s status to determine exposure for protected status under ADA, EEOC, and any other applicable federal or state laws regarding termination of employees in certain industries, age, gender, religion, disability or other classification. Consulting a human resource professional and a labor attorney is highly recommended, as laws vary from state to state regarding timing of final paychecks, termination requirements and the necessity of exit interviews.
Timing is a logical factor in the firing process. When an employee poses a physical threat to other employees, to his or her own person or to the work environment, obviously immediate action with regard to terminations can be necessary. However, in addition to the legal implications of firing an employee in any protected EEOC or leave status, time of day such as the beginning, middle or end of a work shift, or the day of the work week can also adversely impact productivity and cause a ripple effect to employee morale. Choose the day and time taking this into consideration.
3. Exit With Caution: Tips for conducting an exit interview.
Keep it personal and professional. Review the reason for termination and present all factual information and documentation regarding the employee’s termination.
§ Have an unbiased witness, preferably a human resource professional conduct or present at the exit interview.
§ Whenever possible have security available to escort the employee from the premises, and immediately disable computer permissions and access (especially remote access) to the company’s computer systems.
§ Require the employee surrender any company property and request the employee sign an acknowledgement.
§ If the employee refuses to sign, have the witness sign of on the fact the employee refused to sign or surrender equipment (if that is the case).
Even though the majority of states have adopted an “Employment at Will” doctrine, documentation of facts and experiences leading up to the termination are essential in disproving unmerited unemployment claims or potential wrongful termination lawsuits. Even verbal warnings should be documented and filed with notification to the employee of such action.
5. Location, Location, Location.
Where you terminate an employee can factor equally important as when, why and how. Whenever possible, terminations should be conducted in a private place with an unbiased witness (preferably a Human Resource representative).
§ Not at the annual holiday party, for example. If such were the case, the liability would be increased due to the number of witnesses present with varied perceptions for potential subpoena for deposition if a wrongful termination lawsuit were initiated.
§ Avoid public places and common areas such as the cafeteria or reception area as it can create a negative impression on employees or customers. Terminating in these environments also increase the risk of workplace violence if the terminated employee reacts negatively in that public forum.
Employers never escape the risk of adverse firing decisions, as the long-range effects of wrongful termination suits can absorb profit margins and affect its reputation as a quality employer. With the advent of Internet portals such as www.glassceiling.com and social networking sites, there is increased exposure and transparency in the public media that creates added competition for recruiting and retaining quality employees in the current economic climate. Taking these recommended precautions can serve to preserve and protect employers from taking unnecessary risks in a necessary process.