Employee terminations for unacceptable conduct or reduction in force
There are two other reasons to fire an employee. In addition to unethical conduct and behavior, there are also firings for poor performance and unacceptable conduct, and then there’s job elimination. If you have to fire an employee based on these kinds of issues, you want to review the company handbook or company policies so you’re clear on what the handbook says about this kind of violation.
How you fire an employee for unacceptable conduct, or poor performance is similar to the process for a behavior discharge, compare that person’s infraction to prior instances involving similar infractions. If you’re plan to fire an employee because of poor performance, you want to review the existing documentation and the employee’s personnel file.
If you are not in HR, you want to consult with HR or involve upper level management or another supervisor before you fire that employee. There should not be a situation where you have to fire an employee for unacceptable conduct or poor performance solely in a vacuum. And then if you do have a written disciplinary policy, you should ensure that that policy is being followed as well when dealing with unacceptable conduct.
Job Termination and Reduction in Force
The other way you might have to fire an employee is through the reduction in force or job elimination. If your company is having a reduction in force or you need to eliminate a position, you may have to let someone go. And when a company is firing an employee based on a job elimination or a reduction in force, it’s important to set specific factors for how you’re going to select who’s being let go. And the factor should be applied uniformly and consistently to the job elimination or reduction in force. It should be pretty clear how the decisions to fire an employee are being made.
If your company pays severance to a discharged employee, that company should insist on getting a release of claims from the employee. If the employee is 40 years old or older, that release needs to contain certain specific language and meet some additional requirements in order for it be legally enforceable under a law called the Older Workers Benefits Protection Act, which is part of the Age Discrimination Law.
Counsel should probably draft that language or at least review it because there is specific language – there’s also certain state law that may come into play. California has additional language that needs to be included in separation and release agreements. So if you’re going that route, that’s a place to get counsel involve.
Before you fire any employee, review your handbook or policy.
If the employee has resigned, you’ll want a letter of resignation to include in the file. If the – you want to make the employee sign a form saying they’ve been reminded to keep company information confidential. If that employee has non-competition agreement or non-solicitation agreement, they should be reminded of the obligations that are set forth in those agreements and maybe even give him another copy if they don’t have it so that they’re clear on their expectations as a former employee.
You’ll also want to have a termination checklist regarding return of property that person’s going to have perhaps a computer, a bag, a blackberry, a cell phone. You want to make sure you’re getting all of that back. It might have company proprietary information on it.
Edited remarks from the Rapid Learning Institute webinar: Effective Termination Techniques-How to Document Terminations (So You Don’t Lose a Lawsuit) by Alyssa Senzel from June 6, 2007
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