Step 1 – Evaluating the groundwork
Step 2 – Evaluating your progressive discipline policy
Step 3 –Evaluating constructive discharge lawsuit triggers
Step 4 – Choosing the right firing words
Step 5 – Conduct a termination interview
Some years back, it was relatively easy for an employer to fire an employee for whichever reason. This is no longer the case; employees are very informed on their legal rights and because of this, an employee is very likely to seek legal advice before accepting a termination letter. As a result of this, many employers are getting sued everyday for discrimination and wrongful discharge.
It is therefore important for employers and managers to follow the legal procedure when firing an employee to avoid getting into trouble with the law. In most cases, employers have the right to fire an employee for no reason at all if an employment contract was never signed. In the same way, employees have the right to abandon their jobs whenever they wish if an employment contact does not exist.
On the other hand, if an employment contract between the employer and the employee exists, the employer must respect the terms of the contract before firing an employee. Usually, a contract will specify the reasons that call for termination, and they may include poor performance, dishonesty, theft, negligence of duty, and so on.
Nevertheless, there are some recognized exceptions regardless of whether an employment contract exists or not, and they are the following:
Discrimination – according to the federal law, it is against the law to fire an employee because of age, sex, religion, race, national origin, or a disability that is not affecting job performance. Some states have additional limitations whereby it is illegal to fire an employee over sexual preference.
Public policy – the federal law also considers it illegal to fire an employee for a reason that violates public policy, such as firing an engineer for notifying the ETA that a business has been disposing toxic waste inappropriately.
Below is a compilation of proper procedures to guide you on how to avoid wrongful termination lawsuits:
Procedure #1 – Evaluating the groundwork
Firing a difficult employee is a lot easier when you have always made the company’s expectations clear to all employees. Make sure every employee has a job description that clearly lists the tasks he or she is expected to have accomplished by the end of the day or week. It is also wise to make it clear that their tasks may change from time to time depending on company needs. If there are specific rule on specific tasks, make sure they are posted in the work area. This will help your employees to do what is expected of them, and it will be easy for you to point out exactly what they are doing wrong.
Procedure #2 – Evaluating your progressive discipline policy
While it is true that there is no federal law that requires employers to follow a progressive discipline policy, the same law often comes down hard on employers who promise progressive discipline but fall short of delivering it. Many lawsuits today stem from lack of progressive discipline and the perception that fired employees did not receive a fair deal. One of the most effective ways an employer can protect his or her company from wrongful termination lawsuits is to create and adhere to a progressive discipline policy.
A progressive discipline policy typically works by increasing the severity of a penalty every time your employees break a rule. Such a policy may progress from verbal warnings, written warnings, suspension, and eventual termination. That way, no employee of yours will be surprised when they get fired, and it will be impossible for them to file lawsuits against you claiming that you have violated your progressive discipline policy. In short, a progressive discipline policy will lessen your chances of being exposed to most types of wrongful termination lawsuits.
Procedure #3 –Evaluating constructive discharge lawsuit triggers
Constructive discharge happens when an employee claims to have been forced to quit by intolerable working conditions. As an employer, you must stay within both federal and state laws to avoid contributing to factors that produce constructive discharge claims.
Factors that can trigger constructive discharge-related lawsuits include the following:
- Salary reduction
- Reduction in tasks or job responsibilities
- Reassignment to degrading tasks
- Reassignment to a younger supervisor
- Involuntary transfer
- Humiliation, badgering and harassment
- Forceful retirement
- Physical assaults or threats
- Termination threats
Procedure #4 – Choosing the right firing words
If after evaluating procedures 1, 2 and 3 you still have enough reason to fire an employee, consult the company lawyers and make sure you present them with the appropriate documentations and records supporting your decision. After getting a go ahead from the lawyers, its time to choose the right firing words because how you break the news also matters. Follow the rules of both legal and business etiquette and allow the person you have fired to leave with as much dignity as possible – avoid using harsh or abusive words and stick to the facts instead. Make sure you have a witness present at the termination process, such as an HR representative, to answer any questions the employee might have. That will help keep both sides focused on the subject at hand, and therefore minimize the risk of legal exposure.
In extreme situations, such as when you have enough reason to think that the employee you are about to fire may react violently; make plans to have security personnel around the corner. You might also want to disable the employee’s passwords to company accounts and other assets to prevent him or her from doing any damage after being fired.
Procedure #5 – Conduct a termination interview
Some employers don’t understand the importance of conducting termination interviews with employees who have just been fired or resigned voluntarily. While it’s true that a newly-fired employee is likely to be angry and bitter and therefore not motivated to leave positive feedback, exit interviews are very valuable because the information gathered during the process can help identify problem areas and provide ways to implement changes.