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While all terminations carry some inherent risk, there are some best practices that can reduce risk significantly.
1. Termination documentation
Good, ongoing documentation is your best defense to any challenge, whether from the employee in the termination meeting, the state unemployment insurance department, the Equal Employment Opportunity Commission (EEOC), or opposing counsel in court. Be sure to document behavior and performance issues when they happen, any disciplinary actions you take, and any warnings to the employee about the consequences if they fail to improve. While there is no exact amount of documentation that will eliminate risk, more is generally better.
Best practice is to have enough documentation to show a pattern, as well as your good faith effort to help the employee improve.
2. Not relying on at-will employment status
Employers (particularly when short on documentation) often rely on the concept of at-will employment, which means employees can be terminated at any time, with or without notice, and with or without cause. However, there are many exceptions to employment at-will, including any time the termination is related to the employee’s disability, race, sex, religion, age, or other protected characteristic, or when it’s retaliatory because they exercised some right.
If you don’t tell an employee exactly why they’re being terminated (perhaps relying on the “bad fit” fallback), they’ll likely draw their own conclusions, and those conclusions may lead them to call an attorney. On the other hand, if it’s been made clear that they’re being let go for poor performance, which has been discussed with them on multiple previous occasions (and thoroughly documented), they’re less likely to think the termination was wrongful.
3. Termination timeliness
Terminations should come as quickly as possible following the performance or behavioral issue that was the “final straw.” Taking prompt action reduces the likelihood that the decision will appear arbitrary to a third party. It also limits the opportunity for the employee to do something that would make the termination appear retaliatory.
For example, if you decide to terminate an employee for fudging their time card one too many times, but wait three weeks because it’s the busy season, in that three-week period the employee might request medical leave, make a harassment complaint about a manager, or disclose they have a disability. Your motive for termination could then appear suspect.
Termination Guidance
For more information about terminations, we recommend starting with the Mini-Guide: Termination Best Practices and Checklists. This concise guide addresses best practices for terminations and includes checklists to help you manage termination meetings and recordkeeping.
Get HR Assistance with Terminations
If you don’t have the HR staff or resources to advise you and ensure you are handling terminations the right way, GTM can help. Our HR Support & Consulting service provides you with an expert HR consultant – on a regular basis or just when you need assistance – to make sure you are managing your employees compliantly from hiring to firing. Fill out the brief form below to learn more.