Documentation
A record should always be created of an important factual event. Memory may not serve you well years after the fact, or you or parties involved in a particular incident may be unavailable at a later date. As such, contemporaneous documentation may protect you and your company against frivolous lawsuits.
There are many types of events or actions that should be documented, including a new hire’s receipt of the employee handbook; requests for workplace accommodations and responsive efforts; promotions, demotions, or changes in position; when management has taken action to prevent and/or correct discrimination; and any event that may affect the terms and conditions of an employee’s job. However, do not document anything you would not want an employee or his/her lawyer to see one day—for example, a manager’s personal dislike for an employee.
Always document just the facts: who-what-when-where- and why. Additionally, get witness statements when appropriate. Maintain focus on legitimate business reasons for any disciplinary action and place warning notice(s) in the employee’s personnel file.
Risks
Even though an employer may have a legitimate business reason for termination, a discharged employee may claim (even without merit) that the termination was wrongful and/or discriminatory. Such factors which may be alleged as discriminatory are the age, race, national origin, gender, marital status, pregnancy status, sexual orientation, genetic background, and disability of a terminated employee.
Further, the employee may allege the termination was wrongful or retaliatory based upon the employee filing a workers’ compensation claim, safety complaint, and/or sexual harassment charge. As such, employers must be aware of the risks of the termination and document legitimate business reasons to avoid lawsuits.
The Termination Process
There are many ways to handle a termination, but first, be certain everyone involved agrees on the reason(s). The person delivering the termination message should be prepared, and if necessary, rehearse. The discharge meeting should be held in person, unless there is concern about a violent reaction by the employee. If an employment contract necessitates a cash buyout or severance package, details of the separation and release agreement should be determined by management ahead of time, along with what will be communicated to other employees/managers regarding the departure. Finally, if there is any remote possibility of an angry/violent reaction, be sure to discretely notify security in advance.
The best way to deliver a termination message is to be decisive, honest, and BRIEF. There should be no indication the termination decision is reversible or negotiable and the employee should be given time to ask questions or respond to the decision. It is also important to have a witness present.
