How to Safely Discharge Employees
HOW TO SAFELY DISCHARGE EMPLOYEES
By Stephen P. Horner, Esq.
Query:
Unfortunately, we have had problems with discharging our employees who are not performing well. We usually end up with discrimination claims and/or unemployment compensation claims.
How can we safely discharge our employees who aren’t doing a good job??
(George W., Darien)
Response:
By taking the following steps, your company can greatly minimize the risks of discharging poor performers:
1. Treat your employees fairly and consistently, where the circumstances are similar. You are not required to rigidly treat all employees the same but there should be an understandable rationale for treating your employees differently. Remember that jurors frequently ask themselves if the company had treated the employee fairly or not when considering if any laws were violated when an employee was discharged.
2. Use annual evaluations to objectively appraise your employees’ performance. Avoid “sugarcoating” the evaluations. If their performance is unsatisfactory, let them know that and consider putting them on a Performance Improvement Plan .
3. Us progressive discipline (oral warnings, then written warnings, then a suspension, then termination) to address violations of company rules or unsatisfactory job performance. Your discharge defenses are improved if progressive discipline is done properly.
4. Remember to “document, document, document” so that you can prove the employee’s unsatisfactory job performance. Hopefully, the employee will realize that he/she needs to improve his/her job performance as a result of such documentation and the discharge won’t be needed.
5. Retain your management rights and flexibility by advising your employees in writing of their employment at will status and of your employment requirements. That can be done via your job application form, your “job offer” letter, and your personnel manual.
6. Consider the employee’s employment status:
a. Is there a union contract? If so, follow it carefully.
b. Does the employee have a personal employment contract? If so, follow it carefully.
c. Is there any basis for the employee to claim that he/she has an “implied employment contract”?
d. Is the employee in a protected category regarding his/her race, age, sex, national origin, disability, etc.
e. Could the employee claim that he/she was discharged in retaliation for his/her opposing some violation of a law?
7. Consider offering a severance package, along with a release of liability document.
8. If the employee can be shown to have been discharged for “willful misconduct”, he/she will likely not be eligible for unemployment compensation.
9. Treat your employees in the same fashion as you would like to be treated.
If the above steps are followed, your “batting average” of successful employee discharges should be considerably better than at present.
Contact Steve Horner at shorner@horner-law.com
