Terminating an Employee (A Legal How To Guide for Employers)
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Analyzing the employee and deciding whether to terminate him or her...
No matter how big or small your company is you should have an employee handbook or set of guidelines in place and provide them with a copy whenever it gets updated (every year or when major legal changes occur), you may also want to keep proof of the delivery of the handbook in the employees file and it should state that it is the employees responsibility to read the handbook. Next, there should be a review process in place on a quarterly or annual basis, the review should ask objective questions about how the employee performs his job and what skills he or she possesses as well as what they need to develop further.
When an employee falls below the conduct expected of him outlined in the handbook or in the performance review, or if they have broken or you fear that he or she may break any law, you should consider terminating the employee. Otherwise if the position is redundant or duplicative and you need to save costs, you should also consider terminating the employee. -
Assuming you've made the decision to terminate, how to handle the process.
Give adequate notice... Although you are not required to give any notice in an "at will" employment scenario in most states (contact a lawyer in your jurisdiction) every state has different laws that may effect how to go about the termination process. Typically, if the employee has been there for more than three (3) months you would give him or her two (2) weeks notice that he or she is being let go. Of course individual circumstances all vary and the severity of the reason for termination must play a role in whether to give any notice at all. Once you've given notice, you should also deliver a formal letter citing the reason for the termination, the reason must be lawful and if you have any question as to whether what you're doing is in fact lawful or not you should consult with an attorney in your jurisdiction or locale. The letter should also provide a time and place for the "exit interview." -
Exit Interview
The person doing the exit interview for the company (usually a "gatekeeper" i.e. not the top boss, but someone high up enough to be able to directly speak to top management such as the Director of Human Resources) should lay out in a clear and succinct manner the reasons for the termination as cited in the letter described in Step 2 above. Next, the employee being terminated should be allowed to air his or her grievances at the exit interview and to speak candidly about what he thinks about the company... This information is incredibly valuable because it may provide insight into what you can be doing better or worse as an organization. Your willingness to listen may also diffuse potential post-termination issues because the employee may be more inclined to feel as though there was "closure." Finally, assuming that everything went okay with the process described above, you should ask that the employee sign a "Termination Agreement with Waiver and Release." -
Executing a "Termination Agreement Waiver and Release"
The Termination Agreement Waiver and Release document should explicitly state that the employee is agreeing to release all past claims he may have had against the employer and will not sue on any claims that he discovery post-employment, hence its an incredibly important document for the employer to have the employee sign, (any decent HR / Employment lawyer should have multiple samples of these agreements in place and can find one that will work for your particular needs. Often times an employer and an employee both know that there are claims outstanding and therefore consulting with a lawyer may be critical to get an opinion on what the liability may be.... This is often times where a discussion on amounts to pay as severance come into play.
Additional resources provided by the author
The Law Office of Barry E. Janay, P.C.
