Properly terminating an employee to minimize the chances of repercussions starts with gathering all the facts and considering all the factors, says HR attorney Chris Lessard, J.D. Solution Center Advisor to CEDR HR Solutions.
Here are his recommendations on how to do that, in seven steps.
Step 1: Separate the relevant from the irrelevant
Your first step involves reviewing the employee’s performance file, focusing only on performance-related issues ideally set out in writing in a corrective action or write-up or performance evaluation.
“Don’t look at everything,” Lessard says. “Certain things are going to be off limits when making employment decisions. So, if the employee gave you medical records at any point, like a doctor’s note, or if the employee ever filed an internal complaint about harassment or something along those lines, those things are off limits.”
Lessard recommends keeping two separate files for each employee—one containing protected or confidential information and the other containing routine information on payroll records and performance evaluations.
“It’s very important that we not give the employee ammunition or fodder to say, ‘You looked at something inappropriate in my file when making the decision to terminate me.”
Step 2: Review the corrective actions
Next, review prior corrective actions and dates and times in which they were issued.
Lessard says it is helpful to have information in the employee’s file that allows you to say, “I can prove, on this date, at this time, I spoke to you about this concern and I gave you a fair and full opportunity to modify the behavior, but you did not do so and I subsequently had to terminate your employment.”
A good corrective action not only documents the fact that the employee was spoken to at a specific time and date, but also tries to modify the underlying behavior and if it is successful, prevents the expense and work required to terminate and replace a worker, he says.
Step 3: Confirm the terms of employment
Another important step prior to termination is to ensure that you can prove that you and the employee were on the same page. Review the employee’s job description, including any physical requirements and educational and experiential requirements for the position. Also confirm that the handbook was signed and dated by the worker when that person first started working for you, ensuring that the employment was at-will—giving you the right to terminate that person for any reason at any time.
Step 4: Consider the risks of termination
Lessard says it is also vital to evaluate the legal risks of termination before moving ahead with it.
The first and probably biggest legal risk is whether or not the employee is in a protected class. These are things about the person—such as age, race, religion, pregnancy, or disability—that employers cannot use as a basis for employment decisions, such as firing or hiring.
Next in evaluating legal risks is the need to consider protected activity, something that the individual has a legal right to do, such as discussing his or her wages with other workers or bringing OSHA or HIPPA concerns to your attention.
If this has happened and you then terminate that person, he or she could claim that you were doing so in retaliation for exercising their rights.
Before a termination action, you must know what your state or locality requires regarding final pay. If you terminate an employee in a jurisdiction where you are required to pay that person out on the spot and fail to do so, you could be courting a wages and hours complaint, and potentially, a wrongful termination lawsuit, according to Lessard.
If an employee, especially a higher-level or highly-compensated one such as an associate, is likely to cause trouble after termination, you might want to consider a severance and release agreement; a formal legal document where you give a worker money and that person waives his or her right to sue.
Step 5: Evaluate how this termination will affect the business
You also need to evaluate the business risks of terminating an employee.
For example, maybe the person is a superstar from a production standpoint, but awful to work with. Before firing that person, have a strong replacement in mind, or better yet, in hand, or your practice could suffer financially.
Another consideration in terminating an employee, especially a long-term one, is how patients and your other employees could be affected.
Step 6: Be careful what you put in writing
Next, draft your termination letter. Because it’s in writing, be careful about what you say and how you say it.
Lessard recommends avoiding being over-specific in the letter. It’s better to state that the employee has failed to perform the essential functions of his or her job and comply with company policies, so the employee is being let go.
Step 7: Hold the termination meeting
It is best to hold the termination meeting at the beginning or end of the workday in your office, to avoid disruption.
When you are ready to proceed with termination, you need to decide who will be present during the termination meeting. If you have a higher-level employee in the practice who has the authority to fire and has a personal vendetta against the person being let go, Lessard cautions against letting that person pull the trigger. “We don’t want anyone to claim that they were disciplined or terminated for inappropriate reasons, such as a vendetta.”
What should you say? “Keep it short and sweet,” says Lessard. “You can’t unsay something that you’ve said in this meeting so let the termination letter speak for you whenever possible.”
