How do you Fire an employee both Compassionately and Legally?
Terminating the employment of individuals from time to time is a fundamental Human Resource responsibility. The consequences for people who are terminated may range from disruptive to catastrophic. Therefore, you want to be as compassionate and supportive as possible. On the other hand, employees may feel threatened and react angrily or even aggressively. In addition, employees may seek legal relief by filing a lawsuit. So you have to follow best practices and the letter of the law to defend yourself and your company.
Act Compassionately. Just because a termination can be legally done may not make the termination decision right. Think about termination as a type of capital punishment in which you’re taking away a person’s livelihood. Such a decision should be made carefully and advisedly, not hastily.
- Fact Based. A justified but compassionate termination is based on facts, not opinions or speculation. A termination should be supported by findings from an appropriate investigation that clearly documents the employee’s performance or behavioral issues, corrective action taken, efforts to improve performance, and other pertinent facts. Termination, in most cases, should not the first course of action.
- Immediate Separation from the Premises. There may be times when an employee should leave the workplace immediately. You may need the time and space to conduct an investigation in an unemotional and unbiased way. In that case, you can suspend the employee pending completion of investigation.
- Supportive and Unemotional. Conduct your termination discussion in a straight-forward manner and avoid heated exchanges.
- Present a valid, reasonable, and consistent reason for termination.
- Allow the employee to be heard if they want to.
- Try to avoid embarrassing or humiliating the employee.
- Allow the employee to maintain their dignity.
- Offer assistance to the employee if possible.
- Assist the employee in filing for unemployment if appropriate.
Act in Accordance with the Law and Company Policy and Procedures.
- Review Laws. Read state and federal law regarding employee terminations as well as company policies and procedures.
- Review Documentation. Identify the basis of the termination and review documentation in the case file to support it? There is a legal requirement to be consistent in the application of policies or procedures. Failure to be consistent holds both legal risk and possible accusations from employees that you have been unfair.
- Employment at Will. In most states, this provision is a contractual relationship in which an employee can be dismissed by an employer for any reason, and without warning, as long as the basis for termination is legal. For example, the termination cannot violate laws against discrimination based on race, gender, sex, age, religion, disability or national origin.
Other illegal reasons for termination include:
- Hostile work environment,
- Wage and hours disputes including unpaid overtime,
- Whistleblower retaliation,
- Workers compensation claims.
- Final Review. If you find issues, investigate further. Be thorough and be fair.