Terminating an employee, even an “at will” employee, involves legal risk if not properly handled and documented. Various laws may prohibit termination based on sex, race, age, disability, religious preference, violations of public policy, retaliation for sexual harassment or discrimination allegations by the employee, and other circumstances.
Here are 14 tips on what to do in connection with terminating an employee:
- Make sure you have employee set of policies in place, with disciplinary policies. Clear violations of appropriate company policies can support an employee termination.
- If the employee has a history of poor performance or violation of company policy, you need to make sure he or she has been notified and that this is included in the employee’s personnel file. A warning may be more appropriate than an outright firing for the first problem with the employee.
- Inspect the situation as necessary to justify the termination.
- Review any employee offer letter or employment agreement to ensure there aren’t steps or notices you have to undertake.
- Consult with employment counsel before termination to ensure that the termination will not be in violation of applicable laws.
- Conduct the firing in a dignified manner and in front of a witness, away from other employees.
- Be brief, accurate, respectful, and truthful about the termination.
- Make sure all legal requirements are fulfilled, such as having the employee’s last paycheck etc.
- If you are going to offer a compensation package, make sure you get a complete and full release from the employee (the release should be in writing signed by the employee, cover all known and unknown claims the employee may have, and be supported by adequate consideration). Note that special rules for releases may apply if the employee is 40 years old or older.
- Make sure that the employee’s access to your computer network, voicemail, and email will be revoked upon termination.
- Ask for the return of any company laptops, phones, keys, or any other company’s belongings.
- Ask the terminated employee in a polite manner to leave the premises immediately, but give them an opportunity to pack up their personal belongings privately and discreetly.
- In anticipation that there may be litigation, make sure that all relevant emails and other documents concerning the employee are preserved.
- Make a plan for how the terminated employee’s workload will be picked up by team members. That may also require a debriefing with the team, but be sure to protect the privacy of the departed employee.
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Terminating an employee is never easy, and the employer has to make sure it is taking the appropriate legal steps in doing so.
Companies have a great number of legal obligations when hiring, managing, and firing employees. To avoid potentially significant liability, the company and officers running an HR function must be aware of the applicable laws.