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How To Fire An Employee
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Article 4: Before The Pink Slip
When written warnings haven’t worked and you think it’s time to sack an employee, strategize the discharge as carefully so you “law-proof” your actions in advance.
Lisa Guerin, an employment law attorney with Berkeley, Calif.-based legal publisher Nolo, which publishes legal self-help books, suggests five steps before calling the recalcitrant employee in for the last meeting:
Investigate the final incident. Make sure that what you think happened really happened just that way, and that the employee has no plausible explanation for the misconduct. Check the files. Read over his personnel file to make sure there is plenty of documentation showing he was thoroughly warned of the problem and given time to improve. If there is independent documentation, such as signed time cards that back up his frequent late arrival for work, the file should contain that also. Review your written policies. Check your employee handbook and all other written policies to make sure they clearly state that the employee could be fired for particular categories of misconduct. Ensure also that you’ve followed all the steps of your own written discipline policy. What has the employee been told? Has anyone in authority said anything contradicting your written policies or what’s in the personnel files? Could the employee possibly construe your actions or previous conversations as either discriminatory or harassing? Compare how you’ve treated others. Make sure you are treating this employee like you’ve treated others with similar conduct. If you are indeed treating this person differently, be certain you have a valid reason, such as the policy breach was more serious. If you excuse one employee for actions that get another fired, you risk a discrimination claim.
Run your plans by your company’s attorney, especially if you aren’t absolutely certain of your position, advises Gene Fairbrother, ShopTalk consultant for the National Association for the Self-Employed (NASE).
“If you think you could be litigated against, it’s better to spend $300 now to talk to a lawyer rather than $3,000 or so after the fact.”
It’s possible that taking these steps may change your mind about letting the worker go. But if not, the extra effort helps you know for certain that you are doing the right thing for your business.
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