The Process of Lawful Employee Termination

The Process of Lawful Employee Termination

The experience with the termination process that many people have is largely from the perspective of the person being fired. Usually, it largely involves being given notice of your termination and instructions regarding what you need to do after and how much time you have to do it. For example, being told your employment is terminated and you have until the end of the day to empty your desk/office/locker/etc. There may be more to it on the employee side depending on the policy of the business and what prompted the termination, but it often doesn't seem like there's much to it.

In reality, the termination process can be a long and complex task depending on the circumstances that prompt it. Some businesses and companies have a specific series of steps that need to be followed for termination even if it is evident that the employee needs to be fired immediately. In order for the termination to be lawful and to ensure that it remains as such, a thorough process is sometimes needed.

This article will look at what is involved in a detailed and thorough process for lawful employee termination. The steps listed here are included because they can help prevent any unlawful actions from being taken and to help stop mistakes before they happen. Keep in mind that this is largely an example of what the process can look like and isn't specific to any specific situation. Companies and employers can develop their own process to better fit their needs (e.g. to address industry-specific aspects) so it's easier to follow when does need to be implemented. It can have as many or as few steps as necessary to get the job done.

Refer To The Employee Handbook

Well before there is any need for termination-or even before the employee is hired-the employee handbook should be looked at. Employee handbooks and similar information sources carry the requirements and policies that employees are expected to follow as a part of their employment. They also include any consequences and disciplinary policies that are enacted in the event of a policy or requirement violation.1 Employees will expect their employers and management staff to adhere to those policies when dealing with violations, and it acts as a form of protection for everyone. Should a lawsuit develop from a possibly unlawful termination, both parties can cite the established policies for their argument for unlawful termination if the policies were not followed and against if they were.

It's a proactive approach, so it technically isn't a main step in the termination process as it can be present without it. However it is still a useful asset to refer to. Employers should make sure that the information in the employee handbook is kept up-to-date and continues to be accessible to all staff members. All employees should make sure that they actually look at their handbook when they receive it and that they take the time to obtain new copies or informational amendments when they are available.

Follow Policies

Having those policies in place accomplishes nothing if they are not actually followed. Hopefully, employee terminations are not a regular occurrence and employers do not have things memorized thanks to repetition; if they do have it memorized, then it's likely a requirement of their position. When the need for any kind of disciplinary measures arise, termination or otherwise, then it's best to revisit the pertinent policies so they can be properly followed. That includes any policies specific to the employee's actions and those pertinent to the termination process. Review them before taking any further actions to ensure that one, you know what to do and two, it's being done correctly. The guidelines that the policies provide will also make things much easier on those who are responsible for handling the situation.

Document As Much As Possible

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When there are any kind of problems with an employee, even if it's not enough to warrant termination, the situation needs to be documented. This includes information regarding what happened, when, where, and who was involved. It should be written down, but it can also be supplemented by things like security camera footage so long as it is properly noted (e.g. see recording from.). Most employers implement regular performance reviews and checks to help keep track of any issues that may arise, as they arise. The documentation serves to back up any claims that are applied towards termination and legitimizes any actions taken.2

Documentation of an employee's actions can be prompted by the notification of something of concern, rather than through regular reviews. In those cases, employers, management staff, and co-workers may report worrisome actions or behavior to the appropriate parties (e.g. whoever is tasked with dealing with such instances). The documentation in those instances should be as equally thorough, and the person reporting the incident should provide as much detail and information as possible. Even if the employer has not witnessed the offending behavior or actions themselves, this can put them on notice that something is going on and provide them with the opportunity to verify things on their own. Documenting things is a part of laying the groundwork that ensures that things are done correctly and in line with the law, as well as avoiding any unnecessary damages their actions could produce.3

Hold an Investigation

Investigating claims and incidents allows for more information to be discovered and processed before a decision is made. Any documentation and information that has been collected until this point needs to be verified, especially if the employer has not witnessed any of it on their own. In some cases, there may be enough documentation to warrant the attention but not enough to reach a formal conclusion. Basically, holding an investigation is the chance to take a closer look at what is going on and to produce further evidence used to keep things lawful.4

The actions taken as a part of the investigation do not need to be overly complex, even if the situation itself is. It could simply involve analyzing the existing documentation and checking for discrepancies or errors. Employers may want to speak with other employees who have witnessed the offending employee's actions and ask further questions. There may be a need to observe the employee to see if they continue to do whatever it is that was concerning in the first place. Any information gathered or concluded upon during the investigation should also be thoroughly documented to preserve the legitimacy of the situation.

Refer To The Laws

The employer may have a general understanding of employment laws, but they may not have a deep enough understanding that is needed for the situation. Referring back to the different state and federal laws regarding employees is another thing that can help ensure that the termination is lawful. Certain classes have certain protections under law, and that can impact the decisions made towards termination or other disciplinary measures that an employer may take.5 Those protections do not mean that an discipline cannot be administered and that the person can never be fired, but that there are certain things taken into consideration for the situation.

The laws are present for a reason, so it is very important to follow and be mindful of them in the termination process. The process itself needs to be law-abiding, meaning that nothing done in the course of the investigation, for example, can violate any law. Not doing so can delegitimize the entire process and result in consequences for the employer-even if the actions the fired employee took were valid reasons for termination.

Address and Consider Options

Even during the termination process, termination might not be the only option available in dealing with an employee's behavior and actions. There may be circumstances involved that may have put the situation out of the person's hands and/or things might not have been their fault. Again, the example of illness or emergencies leading to frequent absences; that and similar situations are not going to be something that can be completely controlled, no matter how hard you try.

The options present often depend on the circumstances, although there are a few that can be applied universally. One option that employers can give employees before moving forward with termination is to give them a grace period, basically a set amount of time for them to improve themselves. Further evaluations can be done during the grace period to determine if the employee should stay. If the situation is related to the employee's performance, then some employers develop a performance improvement plan (PIP), which lays out what the employee needs to improve and options on how to do so.6 Even if going with other options does not allow for anything to improve and termination still happens, employers are still giving their employees a chance.

Notify The Employee

Once it is evident that termination is going to happen, the employee needs to be notified. This can be done in person-which is preferable-or through a written notice. If the notification is going to be written, it should not be an email saying "You're fired, be out in 20 minutes. K thanks bye" or something like that. That's not very professional or appropriate for the situation, and it doesn't seem like you're taking the situation very seriously. There is an etiquette involved in writing a termination notice, and that requires being very clear and concise in communicating the message.7 Treat it like a formal letter, including all of the proper formatting required. Include information about when the termination goes into effect and what they have to do. Also disclose information regarding their pay and benefits (e.g. severance pay), and who they need to speak with before leaving (e.g. legal counsel, Human Resources, etc.).

If the employer is going to do the termination in person (which can still be done if there's also a written notice), then they should set aside plenty of time for the meeting. Prepare in advance by notifying necessary departments like Human Resources, Legal, and their department head so that any representatives from those areas can arrange to be present. Someone from the IT department should also be notified, as the employee's computer access will also need to be terminated and this can be done during the meeting.8 Any of the documentation that has been gathered up until this point should also be collected and be ready to present during the meeting; this may be necessary to justify the actions being taken and to ensure that things are being done lawfully.9

The actual content of the meeting can be similar to what would be included in a written notice. Be clear about what the situation is and why this conclusion has been reached; employers shouldn't sugarcoat things to make themselves or the employee feel better about what is happening. It's a difficult conversation and there can't be any room for misunderstanding or confusion; if necessary, employers may want to practice what will be said beforehand to make sure that they are getting their point across. They should be firm in their statements and decisions, but they should allow the employee to have their own say-let them ask questions, or even question the reasoning behind the decision.10 They are still a person and their involvement in the situation is valid, thus they and their input should be respected.

Employers should provide feedback about the employee's time there and the situation at hand that they can use in their future endeavors.11 It can be helpful for them in identifying what it is that they did and how it lead to their termination. It can also help them understand the situation and avoid a hostile or defenses response that is unnecessary if the termination is lawful. Feedback also has the added benefit of helping everyone in the conversation get on the same page about what is going on and what needs to be done.

File Any Necessary Paperwork

At the very end of the termination process paperwork, of which there can be a lot of when terminating an employee. This can include paperwork for their employee file, reports on the incident(s), the documentation, anything needed by HR or legal staff, etc. There may also be paperwork pertaining to the employee's salary and benefits, specifically regarding how that will be handled. Terminated employees, regardless of the circumstances, are entitled to be paid through to the end of their last day of work and any unused paid time off.12 Benefits-like insurance-are often handled differently based on company policy and the circumstances. All of that is stuff that is going to have paperwork associated with and it needs to be filled out and filed appropriately. Even though it's happening after the termination, the paperwork involved is necessary to ensure the validity of the situation and to help determine the lawfulness of the termination should it come into question later.