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Kelsey CreehanFeatured News

What is the proper procedure to terminate an employee?

As an employer, there will be a time when you are faced with the challenge of terminating an employee.

Having a clearly outlined termination policy in your employee handbook is your first line of defense to avoid liability and potential complications.  Your policy should mention some basic disciplinary procedures such as:

  1. Will employees receive a written warning for specific violations? 
  2. How many warnings are given before termination is considered? 
  3. What policy violations qualify for immediate termination?

Employees should be required to sign a document, which is retained in their personnel file, that indicates the employee received, read and understood the information provided in the employee handbook.  If an employee claims that he/she was wrongfully discharged, you should be able to reference your handbook to justify your actions.

For less serious matters, acknowledgement of the issue is important but alternatives to termination should be considered. Oral and written warnings and suspensions can be viable alternatives. Make sure, however, that you are consistent in your disciplinary actions with other employees for the same offense. 

In some cases, you may be forced to take an offensive role.  For example, if you have an employee who has violated a strict rule, policy, guideline, or procedure, you should investigate the issue immediately. If the violation is extremely serious, suspend the employee pending the outcome of the investigation and then take appropriate disciplinary action.  Timeliness in an investigation is crucial. In situations involving harassment, failing to investigate thoroughly and promptly could expose your practice to additional liabilities.

You may also choose to give the employee an opportunity for corrective action before termination, when appropriate. Remember that you are trying to correct inappropriate behavior and help the employee improve to better serve your practice.

If you’ve considered both disciplinary and corrective actions without resolution, consider the following steps to reduce your practice’s liability when terminating an employee. 

First, review your documentation of the employee to ensure your decision to terminate is not based on race, color, religion, sex, national origin, age or disability. Specifically, review the Family and Medical Leave Act, the Americans with Disabilities Act, and the state workers’ compensation laws to make sure that you have complied with these regulations.

Next, review your employee files to see if the documentation is sufficient to support termination.  Additionally, your files should include recent performance reviews, documentation of conferences with the employee to discuss the problem, and any corrective measures taken.

When terminating the employee, give them the real reason for their termination. The employee’s personnel file should reflect these reasons, as it may be used in subsequent litigation.  Additionally, you must have the employee’s final wage payment, including any accrued vacation, available at the termination meeting. State law requires that all monies due to the employee be paid at the time of termination.

Lastly, limit your discussions of the termination. To ensure confidentiality and avoid defamation claims, discuss termination decisions only with those people who need to know.