Alternative To Termination
Sometimes termination may not be 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, may 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. Employee relations is like playing chess; make goods moves and make the last move lasting/final. Why discharge if you are only 70 percent sure, when with one more occurrence you have a 90 percent “perfect” case?
It is important to understand that facts will vary from situation to situation. When a reviewer looks at a request for termination, he or she must fit the questions to the circumstances of that particular case. The importance of common sense, of course, cannot be overstated here. Please contact me for a termination checklist.
The Meeting – Method of Termination
2. Get to the point. If you are about to fire an employee, then there is no need to make small talk.
3. Be specific about the reason. If the reason is unsatisfactory performance, say so, and provide specific examples and details.
4. Refrain from suggesting self-improvement. The moment of firing is not a time to suggest methods for acquiring or improving skills, etc.
Items To Be Covered
1. The employee should be told, to the degree possible, exactly why he or she is being terminated. Do not try to soften or increase the blow by giving the employee a pretextual reason for termination; this will only make it more difficult at trial/arbitration.
2. Give the employee his or her final paycheck. Also, have information available for the employee concerning benefit conversions, unemployment insurance, vested stock options if applicable, and other information concerning vested benefits.
3. Be sure during this termination interview that you collect any property which belongs to the company. A property checklist, signed by both the employee and the interviewer, is useful.
4. In voluntary terminations, it is equally important to conduct exit interviews of employees leaving the organization. Some voluntary terminations are not voluntary at all, and you may find yourself with a constructive discharge lawsuit after the person has quit. In a constructive discharge situation, the employee alleges that work conditions were so intolerable, for sexual harassment reasons perhaps, that he or she was forced to quit.
It is possible during a well conducted interview to discover that the employee’s stated reasons for leaving the company are not the real reasons. Frequently, an employee who has been sexually harassed or has suffered other forms of discrimination may choose to leave rather than deal with the problem. This may come out in the exit interview.
If the employee indicates that it is because of alleged mistreatment that he or she is leaving, the reviewer should get as many specific details as possible and ask the employee to delay the resignation. An immediate investigation should be conducted, and the employer should either remedy the situation, if the employee’s contentions are true, or establish that the employee’s contentions have no merit.
In certain non-routine discharges where it is probable that the employee will file suit, a termination agreement or release should be considered. When viewing this, you must consider the key question of whether settlement might be less costly than a lawsuit. Apply a balancing test. A release or termination agreement can be especially appropriate when documentation is less than adequate and/or the employee’s retention presents serious morale or performance problems.
Article by Loren K. Allison, attorney at law
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