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When Firing Employees

When Firing Employees

There is one aspect of being a boss that few (if any) employers relish: firing an employee. In this post, we’re going to provide you with some things to think about as you prepare to terminate someone’s employment.

Think things through. Before you decide to fire an employee, make sure that you have thought things through carefully. If an employee is being accused of incompetence by a supervisor ask for documentation of the incompetence. Not only will this confirm the supervisor’s opinion, it will protect you in the future if the employee challenges your decision.

Don’t get personal. If you fire someone for the sole reason that they are Jewish, homosexual, or female, you can face a serious lawsuit for employment discrimination and wrongful discharge.

Always say: “Your services are no longer needed.” That’s it. You don’t need to say anything else. If you say, “we’re firing you because your old” or some other nonsense, you’re going to get sued.

Is the firing for a valid reason? You can get into serious trouble if you fire an employee for the sole reason that they have informed authorities that you are violating laws designed to protect workers’ rights and safety. The ramifications of violating a “whistleblower” statute are far greater than the cost to you of having to retain (and maintain a relationship with) an employee who accuses you of wrongdoing.

Example: Minnesota has specific statutes and laws that make it unlawful for an employer to fire employees who testify against the employer in minimum wage compliance disputes, who participate in a union, or whose wages are being withheld for child support or other garnishment reasons. In addition, employers may not “penalize” employees for performing jury service and may not “retaliate” against employees for filing workers’ compensation claims, safety complaints, wage complaints, or for reporting (or refusing to participate in) illegal activities.

Ask for the employee’s keys or access cards to the building. If you feel that terminated employees may be disruptive, or may harm other individuals, escort them to their desks or work stations and make sure that they safely leave the building. If you are concerned that they may come back to the building to cause further trouble, consider alerting building security, or changing the locks and access codes to ensure they can no longer gain entrance.

Create a paper trail of the employee’s performance reviews. Keep copies of all negative reports or warnings you have issued to the employee.
Note: If you have written policies regarding poor performance reviews or policies concerning employee discipline procedures for insubordination or improper conduct, make sure that you have followed them to the letter before you try to fire an employee for those reasons.

Keep information confidential. Determine who is on a need-to-know basis and tell only those individuals that an employee is going to be fired. Ask that those individuals keep the information confidential.

Consider all legal requirements you must comply with and do not fail to fulfill them. For example, if the employee is due compensation or commissions, have those figures calculated before you meet with him or her to discuss the termination. Have all documents (such as severance offers, which require a written acknowledgment) at the ready.

Arrange for any necessary parties to be present at the meeting. If you want to have the employee’s supervisor available to back up your position as to why an employee should be fired, consider having that supervisor present for all (or a portion of) the meeting. If you need to have your human resource employee available to explain rights that the employee has to continuation of health insurance coverage, or other similar matters, have that person at the ready.

Arrange for your meeting to be in a private place. It is likely that the process of being fired will be upsetting or embarrassing enough for the employee, without having the whole office watch through the glass wall of the conference room.

Be frank with your reasons for firing the employee. Do not say “well, jeez, I think you are making a good effort but it just doesn’t seem like I am seeing the results I need.” A statement like this will only give the employee false hope that he might have a second chance and may provide fodder for a subsequent lawsuit if he feels like you weren’t telling him the real reasons he was being fired.

Post-firing considerations. Take care not to disparage the employee in front of his or her former co-workers. An attitude like that will rarely be perceived as professional and can be a serious deterrent to employee morale, particularly if the employee was well-liked by co-workers.

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When you need legal help regarding employment law or business law, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506