Hiring Process vs. Firing Process: How to Terminate Bad Employees and Avoid Unlawful Termination
Employers must be thoughtful during the firing process. As more laws are created to protect employees working for “at-will” companies, attention must be used when deciding to fire a bad employee. It is possible to avoid wrongful termination if you have the right skills and knowledge to do so.
Hiring and firing are the two most significant transitions an employee will have during their time within your company. While the hiring process can be fun and exciting, the firing process tends to be a lot more stressful. Though both hiring and firing employees come with a large number of check-lists, there are many things to consider while firing bad employees.
There are a lot of steps that need to go into the firing of an employee to avoid unlawful termination claims and ensure an ethical termination. Firing someone in the heat of the moment can create long-term problems for you and the company you represent. Though a firing may be needed if production has decreased or team morale is down, it can be challenging. Allegations of discrimination can be made, and the process may affect your relationship with the employee, their lives and produce negative repercussions for their family.
- Being respectful and thoughtful is crucial during the hiring process and in the firing process.
- Unlawful termination can linger over a company for years, so be cautious while firing bad employees.
- Taking time to train your employees during the hiring process properly can prevent needing to fire them in the future.
- Document everything, always.
If firing someone is ultimately needed, you need to be well prepared! Keep these things in mind to successfully fire someone without wrongful termination:
When Firing Bad Employees, Make Sure Your Reasons Are Legal.
Lots of employment is “at will,” which means an employee can be fired at any time for any reason if it is not illegal. But employees still have rights, so be careful. Things like implied promises, breaches of good faith, fraud, or slander can leave your company tied up in an unlawful termination case. When looking to fire someone, be sure you consider the same fair recruitment processes you would use when hiring someone.
Reasons you can ethically terminate someone include:
- Consistent incompetence
- Violation of company policy
- Unexpected and unexplained tardiness and absences
- Physical violence
- Sexual harassment
- Drugs and alcohol
- Illegal acts (following investigation of their side of the story)
- Falsified information (like lying on a resume or during the interview process)
Unlawful termination examples include:
- Discrimination of age, race, gender, religion, disability, origin, genetic background, personal medical diagnosis, and pregnancy
- For refusing to take a lie detector test
- Citizenship status
- Complaining about OSHA violations
- Violations of public policy
- Including but not limited to refusing to do anything illegal, for complaining about an employer’s unlawful conduct and exercising their legal rights to vote or take, for example, family leave
Set Yourself Up With Good Groundwork
No firing should shock a lousy employee, but you should be taking the time to lay down a good foundation upon an employee being hired. A good hiring process will include proper shadowing, onboarding, and support. Be sure to check in with all employees, go over the required benchmarks, and hold meetings to discuss how they are performing.
Do what you can to coach the employee, and help them succeed through 1:1 training, videos, and additional team support if needed. If the hiring process and additional employee coaching are appropriately executed, firing someone may not be required. A good employee foundation starts with the hiring process, so be sure it is well throughout and executed with care.
Do Not Blindside Your Employees
If you have not communicated with an employee to identify a problem, they may not even know one exists. Have difficult discussions early on and when needed to make sure your employees understand what is expected.
Before even posting a job listing, documentation should be taken for every role. Not only does this help ensure a fair recruitment process, but it can also save yourself if taken into court for wrongful termination.
When working on firing a bad employee, be sure to have everything you need before getting started.
This should include:
- Their application
- The job description and performance expectations of the role
- The company handbook with acceptable behaviors and expectations
- Company policies covering an employer’s right to discipline or terminate
- Employee reviews, warnings, and disciplinary actions (like write-ups)
- Training opportunities and coaching efforts
- Any investigative material related to the reason for firing
Having access to these things will help you ensure an ethical termination.
Work With Human Resource and Company Legal Teams
To ensure an ethical termination, work with the experts. Your company’s human resource and legal teams will be your sidekicks while firing a bad employee as they have a good understanding of fair recruitment processes and what the firing process should be like. Keep them in your back pocket and in the loop when deciding to fire an employee. Doing so will protect you and your company from any unlawful termination claims.
Think Things Through Thoroughly.
Firing someone in the heat of the moment or amid an argument is a sure way to end up with an unlawful termination claim against you and your company. When deciding to start the firing process, be sure you have valid reasons and are not just making an emotional decision. A failure to review your reasons for terminating an employee can lead to a poor decision.
When checking your grounds for a lawful termination, be sure your motives are:
- Follow company procedures
- Handled in a comparable way to past similar instances
Execute the Firing Process Promptly
Yes, take care with your decision to fire an inadequate employee. But once a decision is made, be sure to execute quickly. It is a stressful and challenging discussion, but waiting can wreak havoc on teams. Pushing off delivering the news that you are letting someone go can ultimately lead to other issues of lowered morale, questioning co-workers, and decreased production. Be timely when providing the information to keep your organization functioning harmoniously.
Hold a Professional Termination Meeting
Using respect and empathy is just as important in the hiring process as in the firing process. You will want to hold a termination meeting with as much respect as possible. This meeting should be carefully planned to minimize any legal liability and protect the people and property involved.
An ethical termination meeting should include:
- An in-person meeting to show honor and prevent angering the employee further
- Two other witnesses of at least management status, if not higher, to protect you and document everything said during the meeting
- Be held in a private, neutral location
- A prepared script. Keep it short and straightforward to proceed quickly. Being clear and concise will help mitigate any thoughts of wrongful termination
- Have security present if you are worried the meeting may end in violence or includes a more legal matter
- Final paycheck information, as well as benefit eligibility and unemployment information
- If a severance package is being included, have that information ready and receive a signed agreement so no claims can be made against you in the future
After the meeting has concluded, also be sure to conduct your plan to collect company assets and retrieve all employee passwords. The last thing you need is to let an employee go and then see that they have done further damage to your business out of anger or ill will. You may also want to escort your fired employee to retrieve their personal belongings and out of the building.
Keeping this process civil and friendly will ensure that the employee is leaving with dignity and the same respect they had been given during the hiring process.
Regardless of why someone is being terminated, have empathy. You do not always know what other factors may be playing a part in an employee’s inability to meet deadlines and keep up with company expectations. Be a good listener. It is not about you. It is about them. Knowing that these discussions can be emotional will help you keep your emotions in check.
Staying calm and collected during these times of high emotion will not protect you but can also prevent you from saying something during the firing process that could make someone feel a fair process has not been used. Doing this may not always be easy, but it is part of the job.
Use Discretion When Sharing the Information Within Your Organization
Not only is defamation a cause for wrongful termination, but you also want to be cautious while sharing the news that a team member has been fired. Inform other employees on a need-to-know basis, keep the messaging vague, and handle post documentation promptly.
Firing someone can lead to an exciting new chapter for a team, but doing things correctly protects your company and sets your organization up for a smoother transition into the future.
The Bottom Line
Firing bad employees can be difficult. Though this process may be necessary to project your company towards a more prosperous future, terminating an employee must be done with care. To avoid wrongful termination, be sure you make decisions based on facts, not emotion, and keep your reasons to start the firing process legal. Even though this can be a lengthy process, it will be worth it in the end to execute an ethical termination.
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