Best Practices of Terminations and Layoffs for employers

Regulations to Follow

Unfortunately,  terminations and layoffs are at an all time high, consequently brushing up on the procedures of letting an employee go might be beneficial.  If you are in HR then you know that most employees are hired under an at-will states.  This sounds reassuring; however, there are rules that need to be followed before terminating a person’s position at will.  Below are some regulations that managers and HR personnel may want to keep in mind.

  • Contractual Obligation: If a contract of employment exists, the contract will take precedence.
  • Federal Law: Federal Law prohibits termination for reasons such as racial discrimination or exercising rights under certain laws.  These include EEO, OSHA, ADA, FMLA, ADEA, and Pregnancy Discrimination Act.
  • State Law: Some States have wage per hour laws, workers’ compensation and other statutes that restrict employment decisions.
  • Implied Covenant of Good and Fair Dealings: The employer and employee must treat each other fairly.
  • Public Policy: An employer cannot fire an employee for any reason that violates public policy. An example is an employee. reporting to the EPA that the company is disposing of toxic waste in a river.
  • Torts: Civil suits where the employer’s policies and procedures cause emotional distress may result in an employer being charged for wrongful termination
  • USERRA: Cannot terminate a soldier when returning from duty without valid business reason.

Minimizing Risk

As an employer, you want to minimize the risk of being taken to court for unlawful termination. Ensuring that you are not dismissing an employee for any of the above reasons should be the first consideration but there are several smaller issues to keep in mind.

  • All company policies need to be clearly defined and easily accessible, including reasons of which the employee may be terminated
  • All employees should be familiar and instructed on these company policies
  • All employees should be subject to regular performance reviews, which should include an update of all company and termination policies
  • Immediate termination should try to be avoided by establishing a system of progressive discipline. See below for a model of progressive discipline.

Model of Progressive Discipline

As soon as a supervisor perceives a performance problem, he/she should issue and oral warning. This memo should be added to the employee’s file. Ask the worker:

  • Is the worker having long-term problems?
  • Are there skill deficiencies that need to be addressed?
  • Add a memo to the employee’s file about the conversation
  • If the problem persists, the supervisor should provide a written warning explaining the exact issue and the consequences. Specify the time frame for improvement and if the employee fails to improve they will be terminated. Have the employee sign a copy of the warning to keep in their file.

If no improvements have been made, the employer should use the policy of consensus decision and discharge the employee constructively.

  • Notify HR or other company authority, supervisors alone should not be given firing authority
  • Include copies of all previous warnings
  • Make sure the employee is not being fired under any unlawful terms
  • The employee needs to sign a statement of why they are being asked to leave
  • Do not try to force an employee to quit by making their job intolerable.  Examples of this behavior include; improper demotion, improper transfer, coercion into early retirement, discriminatory pay, sexual or racial harassment or harassment based on age or disability.

Terminating an employee is not a satisfying experience, but these steps can help minimize the likelihood of law suits as well as cut down ondistress for the employee and employer.

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