How to Lawfully Terminate Employees

There are two types of terminations: voluntary and involuntary.

Voluntary termination is an employee resignation for another job, personal reasons, retirement, etc.

Involuntary termination is initiated by the employer to terminate the employee’s employment.

Reasons for involuntary termination can be unsatisfactory performance, layoff and misconduct (violations of employers code of ethics, conduct, policies, practices and/or rules).

It is essential that all companies and managers know the appropriate federal and state employment laws that could affect terminating employees.

Follow your employer policies and procedures in your handbook.

(Call us ASAP if you don’t have a handbook!!)

If you do not have a handbook then employers should outline the progressive discipline process for all employees. The progressive discipline process should include: Coaching and counseling, verbal warning, written warning, suspension and termination.

The employment at will doctrine (not a law) pertains to the employers right to terminate the employment relationship at any time, for any reason, with or without notice, as long as the employer is not violating any oral and written contracts, public policy, or covenant of good faith and fair dealing.

Very Important Documentation:

• Document whether the employee knew a policy existed and was warned about violating the policy.
• Document evidence that a valid business reason exists for the termination.
• Document that the termination does not violate any law, policy or employment agreement.
• Document evidence that other employees who engaged in similar conduct were subject to similar discipline. Must prove that race, color, religion, gender, national origin, disability, genetic disposition, pregnancy, age, etc) had nothing to do with the termination decision.
• Document a thorough investigation was conducted prior to any termination decision. The documentation should also have evidence that the employee was given the opportunity to state their side of the story.
• Document the discussions, record, evidence and communication to the employee regarding the performance issue, time to improve, how to improve and that failure to improve would result in termination in employment.

Conduct all meetings in private and follow up all discussion with notes.

During the Termination Meeting:

• Remain calm.
• Avoid small talk.
• Clearly state the reason for the termination.
• Avoid personal references or accusations.
• Be prepared.
• Provide the employee with the termination notice.
• Discuss final check, company property, etc.
• Exit the employee from the building.

Source : SHRM Termination Decisions ToolKit 2008; CCH Incorporated, 2008

Termination Checklist for Employers

If you answer “no” to any of the questions below, review the termination carefully.
1. Have the violations been thoroughly documented and investigated?
2. Are there facts to support the discharge?
3. Has the employee been told discharge is the next step in the process?
4. Is the violation so serious that it requires immediate discharge?
5. Do employee handbooks clearly state that an employee can be discharged for this violation?
6. Does the employee know the appropriate rule and penalty they violated?
7. Has there been a serious, documented effort to help the employee correct the behavior or performance?
8. Have other employees been discharged for the same violation?
9. Has the employee received a fair hearing to their side of the story.
10. Has this employee gotten away with the same violation in the past?
11. Has the employee experienced any retaliation from other employees or management?
12. Has the employee been treated fairly?

Before you terminate an employee check with an HR Professional!

Reference: BLR HR Daily Advisor 6/16/2009. Termination Lawsuit Risks Reduced? Check!