Terminating Problem Employees

Article excerpt

Consistent Procedures Should Be Emphasized

While an employer's best defense against a wrongful discharge claim often is established through careful employee selection and consistent disciplinary procedures, the manner in which the employee is terminated also is important in protecting against liability. The best methods of minimizing claims associated with termination coincide with those methods dictated by good business judgment and common sense. Be professional and courteous, and treat the employee with dignity and respect during the termination process. Try to be fair. If a lawsuit does result from a termination, a judge and jury will be influenced most favorably by an employer who took safeguards to avoid an unfair decision.

Deciding to Terminate

Terminations have the potential to turn into million-dollar decisions and should be treated accordingly. No single supervisor should be authorized to terminate an employee. Where immediate action is required, a supervisor's power should be limited to suspension, to allow for a complete review of an employee's performance. If a supervisor, acting alone, terminates an employee, too often management either must accept a marginal decision (with the accompanying risk) or must severely undercut the supervisor's authority and ability to manage by reversing his or her decision.

In reviewing an employee's performance to determine whether termination is appropriate, the employer should consider its own past practice. Specifically, the employer should consider:

* What incidents have resulted in termination in the past? And do these examples indicate that discharge is appropriate in this situation?

* If past practice indicates that termination is inappropriate, is the current situation clearly distinguishable from past incidents?

* If past practice indicates that discharge is inappropriate, have new policies or procedures been announced (well in advance of the current situation) that fairly alerted the affected employee to the employer's new approach?

* Did the employee to be terminated have a fair chance to learn of the new policies or procedures?

* What will the termination do to the employer's EEO-1 report?

Terminating the Employee

The manner in which termination decisions are communicated to the employee is important. Many times, it is the way a termination has been handled, rather than the termination itself, that has led to litigation. …