Terminating an employee is the last thing an employer wants to do. Nevertheless, investing the time to do it right is just as important a part of the employee lifecycle as recruiting, training, or development. In fact, the vast majority of employee related lawsuits occur when employees feel they have been wrongfully terminated. However, with the proper training, review, and disciplinary protocols in place, managers can mitigate litigation risks associated with the termination process.

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	Heather Gatley

The most common reasons for dismissal are committing a crime, insubordination, or failure to perform or adhere to job expectations. The first two scenarios are fairly black and white, but the latter falls into a gray area where deciding factors and indicators are open to interpretation.

There are three main reasons why an employee might fail to meet job expectations: 1) a lack of communication (i.e., poor understanding of job expectations); 2) a lack of conditions (e.g., inadequate training); and 3) a lack of consequences (e.g., failure to motivate or counsel). The negative energy flowing from any of these three is often manifested through comments like “I don’t want to” or “I can’t.” AlphaStaff encourages the managers and supervisors of its business clients to be on the lookout for these indicia and to be prepared to step in with training and mentoring techniques to get employees back on track. Make sure to target the undesirable behavior and not attack the employee personally. Counsel in a timely fashion, but don’t rush through explanations of the procedures and expectations.

If an employee does not respond to effective training and counsel, begin the progressive steps of discipline. An example of a disciplinary program could go as follows: first offense, oral warning; second offense, written warning; third offense, final warning or suspension/probation; and fourth offense, termination. Of course, employers should always reserve the right (in writing) to deviate from this process whenever circumstances warrant.

Terminating someone’s employment should always be a last resort, and it can be justified or ruled out by the following questions:

1. Are we, the supervisors and managers, being consistent in the application of the rules?
   
   
2. Does the employee understand the expectations of his or her position and the consequences? Did we do everything we could do to help the employee?
   
   
3. Has the employee had an opportunity to respond formally? Is the employee likely aware that termination is coming?
   
   
4. Has the employee been given reasonable time to correct his or her behavior?
   
   
5. Are we confident that the employee just isn’t in the wrong job? Have we explored moving the employee to a position where he/she could better succeed?
   
   
6. Have we made sure the employee’s problem really isn’t the manager’s problem?

If you cannot confidently answer yes to these questions, or do not have the documentation to back up your evaluation, you may need to reassess the steps and behavior that led you to question the person’s employment status.

Once you determine that termination is the only solution, it’s key to conduct the termination with the same formality used in the hiring process. The termination meeting should be attended by two individuals (usually a supervisor and an HR professional) who conduct a brief review and address the issue in the first few minutes. They should explain briefly and clearly the reasons for termination, but should avoid counseling and using emotion. Do not console the employee, no matter how likeable the person is and regardless of his or her history with the company. Because you followed the company-wide procedures, there is no need to neither argue nor justify the decision. Write down the message delivered and any response by the employee.

In today’s litigious society, all employers have some risk of employment-related lawsuits. But by documenting the steps of the termination process and remaining consistent in the application of procedures and standards, you can ensure validity and objectivity while protecting yourself from litigation.

About the Author

Heather Gatley is Executive Vice President of HR Services and General Counsel of AlphaStaff Group, Inc., a human resource outsourcing company offering flexible employer solutions that control costs, address key compliance issues, and provide legal liability protection while delivering world-class benefits. For additional information, please call 1(888) 335-9545 or visit www.alphastaff.com.

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