So you think you’re ready to terminate an employee. Are
you really?
Here are 20
questions that every employer should ask itself before going ahead with a
termination. If you think I’ve missed anything, please feel free to add your
own in the comments.
GETTING STARTED
No. 1. Is
the employee covered by a collective bargaining agreement? If so,
make sure that whatever you do is consistent with the CBA.
No. 2. Is
there a relevant employment policy? Have you read it lately? If the
termination will be for attendance, have you reviewed your attendance policy?
If for poor performance, have you reviewed your policies dealing with
progressive discipline and performance improvement plans? If for misconduct,
does your policy say that the alleged misconduct should result in
termination?
No. 3. Is
there a “past practice” for handling the issue that you are encountering with
this employee? Are the options you are considering
consistent with that practice?
No. 4. Do
your CBA, your policies, or your past practices contain any exceptions? If so,
might any of them apply in this situation?
EMPLOYEE
KNOWLEDGE
No. 5. Has
your employee been told about the attendance, performance, and behavior
standards that apply, either through CBAs, policies, training, or otherwise?
No. 6. If
the termination is for attendance, performance, or an accumulation of issues
that would be minor if considered by themselves, has the employee received
progressive warnings?
No. 7. If
the termination is for severe misconduct, is it specifically addressed in a
CBA, policy, or training (for example, a list of
violations for which employees are normally fired on first offense, or
harassment training)? If not, is the behavior so horrendous that anyone in
his right mind would know he’d be fired?
court that
the employee’s “protected status” had nothing to do with the decision?
No. 13. Has
the employee engaged in any “legally protected activity” in the past year? For
example, filing a workers’ compensation claim, asking to take time off under
the Family and Medical Leave Act or for military or reserve duty, asking for a
reasonable accommodation, making a safety complaint, filing an EEOC charge,
making an internal complaint of discrimination or harassment, recruiting
co-workers to support a union campaign, complaining about allegedly dishonest
business practices in the company (and much more)? Will you be able to
convince a government agency or a court that protected
activity played no role in your decision?
No. 14.
Do you, the managers, or the supervisors involved in the termination have
an axe to grind with this employee? Is
there anything that would affect your ability to make a decision that is
just?
No. 15. Is
“the heat of passion” involved? If the employee did
something to infuriate you (or her supervisors or managers), did you give
yourselves a chance to calm down before you started making decisions?
No. 16. Even
if no “legal” issues are involved, is there anything about this
termination that doesn’t feel right to you — for any reason?
No. 17. Have
you consulted with your in-house or outside employment counsel? If
not, have you consulted with a seasoned and experienced HR professional, or an
employers’ association? A “devil’s advocate” of any kind? Do they support the
termination, or are they trying to talk you out of it? If they support it, did
you give them all the relevant facts?
CYA
No. 18. If
you suspect that the employee is the litigious type, have you alerted your
bosses about what may be coming? Can you prove that you
warned them in advance?
No. 19. If
you disagree with the decision to terminate, is your conscience clear that
you did what you could to ensure a fair outcome?
No. 20. Have
you considered offering a severance package that includes a release of claims?You probably
wouldn’t want to do this with an employee who had committed serious misconduct,
but it may be worth considering if the employee is being terminated for, say,
poor performance. You also don’t necessarily have to go all-out in fighting the
employee’s claim for unemployment.
Anything
else? Please weigh in!
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