In today’s morally relative society, understanding the legal guidelines for terminating employees for cause has become increasingly confusing. As leaders, we are to treat all people the same as we would want to be treated, exuding dignity, respect, compassion and integrity. However, we are also to treat people differently when they are poor caretakers of their given responsibilities. On the job, this can include discipline up to, and including, termination.
Following a termination there is no way to guarantee that an ex-employee, even your best friend, won’t sue his or her employer. However, through a display of good character coupled with sound procedures, a leader can allow the employee to maintain his or her dignity throughout the discipline/termination process and, in turn, lower the possibility of litigation.
Below is a list of considerations to follow when faced with terminating an employee. This list is not meant to be exhaustive because no checklist can possibly anticipate all patterns of behavior. Still, if followed, this should help reduce the risk of legal exposure for you and your organization.
General Considerations for All Terminations
q Does human resources concur with the progressive process you followed?
q Is there an implied (“clean” personnel file), verbal (“be with us as long as you do well”) or written contract in question?
q What is the employee’s tenure? If the person is a long-term individual (10+ years), do you “owe” him/her some special consideration?
q What is the effect of the termination upon the morale of the organization? What will you do if morale is an issue?
q Does it appear, if applicable, that the employee’s “protected class” has anything to do with the decision to terminate the employee?
q Has a thorough investigation been conducted so that the decision is based upon facts and not perception, hearsay or speculation?
q Are there extenuating circumstances, case law or other factors which justify a lesser penalty?
q Is the decision being carried out in a timely manner?
q Is this action consistent with prior incidents of a similar nature?
Disciplinary Termination Considerations
q Was the disciplinary rule known to the employee? How do you know this?
q Was the practice displayed by everyone consistent with the rule?
q Have appropriate progressive disciplinary steps been followed (verbal, written, suspension, etc.) while treating the employee justly and fairly (per the law)?
q Is all the discipline documentation orderly and timely?
q Did the employee have an opportunity to take constructive action?
q Do the employee’s other records support the decision (e.g., did the employee just received a merit raise for outstanding performance…OUCH!)?
q Is your progressive discipline viewed as a procedure and not a policy? A procedure can be changed (could or would occur); a policy cannot (lose your at-will status).
Performance Termination Considerations
q Were the job description and standards accurate and clearly relayed to the employee?
q Was the employee told not only of job deficiencies but coached, within a timeframe, in how to improve and meet the job standards?
q Did the employee ask for help and, if so, was s/he denied, based on the attitude that he or she should know how?
q Is the articulated reason for the discharge the real reason or are there any hidden agendas?
q Is the area of deficiency one that can be objectively measured, or are the criticisms subjective in nature (bad attitude vs. not doing job)?
q Is the unacceptable behavior documented well through specific verbal & written counseling sessions?
q Does the employee’s personnel file support the termination (or did the employee just receive a merit raise)?
The Termination Itself
q Will the termination be conducted in private? (It should be.)
q Will a human resource representative be your witness for the termination? (A witness is necessary.)
q Have you made sure that the supervisor conducting the termination is prepared to be calm and factual?
q Does human resources have all the paperwork, checks, etc., ready to proceed?
q Do you have a list of items the employee needs to return to the organization?
q Are you ensuring the termination meeting will be free of interruptions?
q When will the termination be given? (Try to avoid mid-week.)
It has been said that the best termination is one that doesn’t have to occur. However, if faced with having to terminate an employee, display good character and quality methods for a dignified, smooth process. Still, when in doubt as to your next step, contact your legal counsel or HR consultant to share the issues so you can proceed as a good steward to both your employees and your organization.
About the author:
Ron Smedley is president of Synergistic Resource Associates, a full-service human resource/development consulting group that works directly with both marketplace and ministry organizations. As a professional human resource generalist, Ron is often called upon in the area of labor law interpretation and policy/procedure writing with the focus on practically, strategically, and relationally synergizing the systems of the organization with the development of their leadership and employees. Besides consulting full-time, Ron instructs graduate adult students at Biola University and Claremont Graduate Universities within leadership, performance management, personal and corporate conflict, human resource strategy and ethics courses.
Ron’s passion is seeing men, women and organizations grow beyond their paradigm and the “box” they so often place themselves within. For questions or support surrounding this article or other people development areas, email him at ron.smedley@sraonline.net or call 714.993.5003. His office is located in Placentia, CA.
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