As a company owner or HR director, learning how to avoid HR termination issues may not be an easy or enjoyable process.
HR Terminations issues can create legal liability to the employer unless the reason for and the process of releasing the employee is legally compliant. In this episode and article, attorney Scott Callen and I discuss simple, yet powerful questions and a few other tips to stay on the compliant side of Human Resource challenges.
The Termination Questions to address are:
- Can you terminate an employee?
- Should you terminate the employee?
- How to terminate the employee?
Can you terminate an employee?
The first question to ask is ‘can you’. Since Florida and many other states are At-Will work states, employment is at the will of the employer. The key here is that barring a violation of a law or agreement; an employer can legally terminate an employee without cause.
The employer should consider these questions:
- Does an employment agreement or other policy about this employee require a ‘for cause’ condition to exist? If so, has that ‘for cause’ condition been met?
- Is the reason for the termination prohibited by law? In other words, is the reason for the termination discriminatory in nature?
Should you terminate an employee?
Now that the first question is complete, the employer, and many times, the HR and Legal expert move to addressing the second question. Due diligence analysis is required with this question to determine if the termination should proceed. The employer and their team consider many factors, like:
- Did the employee violate existing policies or normal, expected and routine practices, even if those are not formalized and written?
- Is there a history of accepting similar behavior in the past from other employees?
- Is there a pattern of this unacceptable behavior?
- Has the employee been warned about the consequences of this behavior?
- What documentation exists?
- Is the job performance unacceptable compared to norms?
There are many factors to consider and the above list is not even close to exhaustive, but illustrates the analysis required.
Even after the above questions and analysis indicate termination, there may be other factors that lead to delaying the termination and provide more counseling or some other remedy. For instance, if illness causes the employee not to perform the expected duties of their job, the employer may decide to provide more paid sick time or reduced work schedule or a similar alternative. Each situation is unique, and each situation has different economic, financial, and human factors to consider.
How to terminate?
A termination is like a divorce; it is personal; it is emotional; it has financial implications; agreements are many times involved. How terminations are conducted will many times determine if legal action by the employee will take place or not. A few tips about the ‘how-to.’
Documentation of the reason to terminate is paramount. The documentation tells the employer side of the story at the time it happens. The more detail, the more real-time this documentation is created, the better evidence the employer will have in place in the event litigation happens.
Communication of termination with employee –
The employer should provide an explanation of why the employee is terminated. This should be truthful and brief explanation, less is more. Whether to provide written communication or not is a decision that you should make with your experts.
It could be appropriate to offer the employee an opportunity to resign.
Severance agreements –
Severance agreements can help the process by providing clear terms of what is to be provided by the employer, severance compensation, not to compete, and not to solicit, etc.
Hopefully, this article on How To Avoid HR Termination Issues provides helpful tips and some nuggets of knowledge about a difficult situation that most employers will face. Disclaimer: This article is for educational purposes only.