By Mark Wright, OD, FCOVD,
and Carole Burns, OD, FCOVD
June 19, 2019
Your employees are your greatest asset–and sometimes your greatest liability. Here’s how to terminate an employee from your staff without creating additional problems.
Employment in most places is “at will.” This protects the employer and the employee. “At will” means the employee can quit or you can fire them at any time – with or without reason. “At will” does not give you carte blanche.
There are unlawful reasons for firing an employee. Unlawful reasons include discrimination against: national origin, race, religion, disability, age, pregnancy or other protected characteristics (e.g.: California employees’ additional protected characteristics include marital status or sexual orientation and Michigan has additional protection based on weight).
Other Articles to Explore
Because there are legal issues involved in firing a staff member that go beyond discrimination laws (i.e.: an implied contract exception), your first step is to consult with an attorney specializing in human resources. They will tell what you need to do and say, as well as counsel you on what you should not do and say. They can also help you create an employee handbook or revise your existing employee handbook to follow current law.
Your next step is to have a written disciplinary protocol in place within your employee handbook. The Office of Inspector General of the United States lists possible disciplinary actions such as: warnings (oral); reprimands (written); probation; demotion; temporary suspension; termination; restitution of damages; and referral for criminal prosecution. Essential within your written protocol must be a statement that says that you do not have to follow the protocol.
That sounds contradictory but you must have the ability to skip your normal steps and fire someone immediately. Examples of situations that might require immediate firing include but are not limited to: theft, violence in the workplace, discrimination and sexual harassment.
When an employee is not being dismissed for a reason that requires immediate termination, your goal is to make it as positive an experience as possible. Remember that at the time you hired this person you felt they had redeeming qualities – odds are they still do. It could be that they may be a better fit in a different business.
When you terminate their employment, this person is going to go out into the community and talk about you. It’s best to manage what they say about you. You can do this by following this approach:
1) Show genuine care for the person.
2) You’ve been meeting with the employee trying to get improved performance, so the firing should not be a surprise.
3) Talk about the job expectations that went unmet. Never degrade the person.
4) Always have a third-party present to document the conversation.
5) Don’t ask questions where you don’t know the answers.
Here’s an example of how that conversation should go:
Owner: “Karen, are you happy here?”
Karen: “No, I keep getting told all the things I’m doing wrong.”
Owner: “This has been really challenging for both of us. We’ve tried many ways to make this work, but this position is not allowing you to use your strengths. At this time, it is best that we discontinue your employment to free you up to find a job where you will excel. We care about you and want the best future for you.”
This action is best done at the end of the day, so the employee can collect their belongings in private.
To avoid remaining staff talking among themselves, and possibly coming up with scenarios that are not accurate, an e-mail should be sent to all current employees from the person in charge stating: “Karen is no longer a part of our practice. Please see me personally if you have questions.”
Lastly, make sure everything you are going to do and say is approved by your HR attorney.