Factors to consider before terminating an employee
Consistent process when terminating an employee
Suppose you find out that an employee has been viewing pornographic material on his computer during the workday. You think this warrants immediately terminating the employee even though you did not terminate the last person you caught viewing pornographic material. First you want to ask yourself if this person similarly situated to the last person? Is this the first time you caught this person viewing pornographic material? Did you catch that other person numerous times and give that person warnings? You want to see how you handled the situation with the last employee. Is this person a great performer? Is this person a lousy performer? Because similarly situated could mean, in terms of prior acts that aren’t related to the current problem. So, you don’t want to just go terminate this person when you didn’t terminate the previous employee if there are good reasons. With all of these hypothetical situations, there’s not going to be any great yes or no, this is exactly how you do it. These are just some of the factors to consider prior to terminating any employee.
Disconnect between action, paper, and words
An employee receives a good performance evaluation in January. In April, her performance begins to suffer. By June, her manager decides he’s had enough and plans on terminating the employee. Good idea? Well, start by asking if she’s been told that her performance isn’t up to par and has she been given an opportunity to correct it. This says, in April her performance begins to suffer. By June, her manager wants to fire her. Well, when her performance began to suffer, did she know about it?
Because in June, the employee might think she’s still doing a great job and this termination may come totally out of the blue. Everything we’ve talked about over the course of the last hour suggests that we want to give people fair warning when they’re not meeting our expectations and an opportunity to correct it. If she hasn’t received any counseling, any oral counseling, any written counseling, any performance improvement plan, turning around and terminating the employee is not a good idea. You’d want to talk to her about her performance; put her on a performance improvement plan so that she does have the opportunity to improve before terminating the employee.
Justification and investigation
One of our employees has been accused of sexual harassment. You think that warrants immediate termination, not progressive discipline. Is terminating the employee immediately justified? Well, my first question to you is, did you investigate? Right? Because what this says is one of our employees has been accused of sexual harassment.
The first thing to do is investigate to determine whether that you find that the harassment actually occurred. And when you investigate your standard is doing a good faith investigation and reaching a conclusion that is reasonable. So if you reasonably conclude in good faith that the harassment occurred, then your question is what are we going to do? You’ll want to look to see what have we done in the past? If you conclude that terminating the employee is the appropriate course of action based on what you’ve done in the past, that’s fine. You don’t have to go through progressive discipline in every situation. If the situation is pretty low level and you haven’t fired people in the past, you’ll want to seriously consider why you want to make an exception for this person and if there’s a legitimate non-discriminatory reason.
Now with sexual harassment the standard is if you know or should have known that the conduct was occurring, you need to take immediate and appropriate corrective action to make the conduct stop. That’s the hostile environment standard.
Often immediate and appropriate corrective action to make the conduct stop, does mean terminating someone, not just given them an oral or written warning. So it’s not problematic to fire someone, you just want to make sure you’re following the steps that you’ve laid out and that you are being consistent when terminating an employee.
Edited remarks from the Rapid Learning Institute webinar: How to Document Terminations So You Won’t Lose a Lawsuit by Alyssa Senzel given on June 7, 2006
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