Are You Terminating Employees “By the Book?”

    The unpleasant take of discharging an employee should follow a time-tested protocol to put you in a defensible position should your decision be challenged in a proceeding or in court.

    You need to review and investigate any issues in which a supervisor wants you to terminate an employee. The possibility of an employee being “fired on the spot” for any offense should not even be a possibility. The maximum authority any supervisor should have is to suspend an employee pending further investigation. Immediate supervisors should be given the right to recommend termination but should not be permitted to fire an employee. Frequently, the immediate supervisor is too emotionally involved with the employee and the termination decision to be objective in reviewing the facts. Also, supervisors frequently are not well versed enough in company policy and legal consideration to assess whether discharge is an appropriate penalty. It is advisable to have a management executive who is well versed in the legal considerations review all requests for termination. This person should have the authority to deny a termination request and make the denial stick.

    In a unionized facility, the employee has the right to request a union representative to be present where the employee “reasonably believes” disciplinary action may be issued. The unionized employee does not have a right, however, to union representation where the meeting is simply to tell the employee what action has been decided upon.

    For those of you who have some kind of internal review, appeal or grievance procedure, your handbook should designate that procedure as the employee’s “exclusive right of review.” If you do not have such a policy, consider one because the presence of such a procedure could assist in portraying the plaintiff-employee to a jury as not being concerned enough with his or her job to even follow the internal mechanism provided by management.

    Never make the decision to discharge prior to interviewing the employee. After the interview, tell the employee that no final decision on termination has been made and that the employee’s input will be given consideration. In a union setting, if asked, have a union representative present. Also, this interview can be used to pin the employee and his story down. Again, use this as an opportunity to find out the facts. Have the supervisor present during this interview unless the employee is intimidated or less than candid while the supervisor is there.

    It may appear that termination is not the appropriate penalty. For example, a long-time employee with a good record may have developed attendance problems in the preceding months. A leave of absence, therefore, my be more appropriate than termination. If the attendance problems do not resolve themselves, it will appear before a judge/arbitrator that you have gone above and beyond the call of duty in giving the employee one final chance. In other words, it is better to back down today and live to fight and discharge another day.

    Terminating an employee is not pleasant, but it is part of day-to-day business. Following these recommendations does not make it easier, but ensures you are legally defensible.