Don't sue, don't get sued. Effective termination procedures protect your organization while creating fair and equitable employee treatment. Review the employee's file and all other related documentation before making disciplinary decisions. Make sure the employee has received fair and timely warning of problems and opportunities to correct them.
Whether you are an HR professional, a people manager, an entrepreneur, or an employee relations attorney advising on employment issues, this article is for you. Discover everything you need to know about functional and legally defensible termination policies. Explore how progressive discipline provides documented steps to protect both parties in the employment relationship. Learn what elements should be included in a written warning (which aren't).
Progressive Discipline Steps
What is progressive discipline? Progressive discipline is a step-by-step process for dealing with workplace issues or poor performance. Follow these steps to ensure fair and equitable treatment for all employees.
Step 1: Counseling and verbal warning
Begin with verbal warnings for less severe infractions. While this is " verbal," be sure to document the meeting (include date, time, place, participants, issues discussed, and action required). Hold a private meeting with the employee. Clearly state the problem and provide support to correct it. Verbal warnings should be used for first-time offenses or issues such as tardiness, incomplete assignments, or profanity in a meeting.
Step 2: Written warning
If the problem persists and verbal warnings have failed, it is time to escalate to a formal written warning. Include the policy violated, the date and time of the offense, all prior warnings, action required to improve, and consequences for failure to improve. The employee should sign the document, indicating receipt only (not agreement).
Step 3: Final warning or suspension
The final written warning is issued after progressive discipline has failed to improve the situation. Suspension, either paid or unpaid, should be considered for serious offenses or while further investigation occurs.
Step 4: Termination
Termination is either the last step in progressive discipline or the first step in cases of workplace violence, theft, or other severe offenses. The documentation we discussed above will support your decision to terminate.
Termination Procedures and Other Considerations
Terminating an employee is one of an HR professional's most difficult aspects. Even when it is justified, it must be done in a way that protects the rights of all involved.
When to consider termination
Termination is often the result of progressive discipline procedures that have failed to correct the situation. Other instances, such as workplace violence, theft, or assault, require immediate termination. In these cases, do not rush into a decision. Review all of the documentation and investigate the situation thoroughly. While most employees are at will, you still must follow specific legal guidelines before terminating employment to avoid wrongful termination.
How to conduct a termination meeting
As far as timing is concerned, it is best to conduct termination meetings early in the day and early in the week. Do not hold termination meetings on Fridays or the day before holidays—people will need time to process the information. Keep the meeting short (10-15 minutes) and in a private space away from other employees.
Begin the meeting by stating that the individual's employment is being terminated. Support the decision with specific examples of policy violations (found in your documentation). Remain professional throughout the meeting. Do not argue or apologize. Apologizing can imply that the decision may not be final.
Final pay and documentation requirements
The timing of final pay differs by state, with some requiring immediate pay at termination and others allowing you to wait until the next regularly scheduled payday. Complete a formal letter of termination that includes the reason for termination, benefits and information, and what company property needs to be returned. If the employee was enrolled in a health plan, then COBRA notification is required. Documentation is key to protecting your organization against any legal claims.
Avoiding retaliation and discrimination claims
Retaliation claims are often filed by employees who report a workplace issue and become the subject of disciplinary action. The EEOC prohibits an employer from taking any disciplinary action against an employee based on their protected characteristics or status as a whistleblower. Avoid any actions construed as retaliatory, such as trying to determine who filed the complaint or threatening negative consequences if a complaint is filed. Train managers on how retaliation can cause legal issues, even if the underlying termination was completely valid.
Disciplinary Process Documentation and Compliance Best Practices
Documentation is key when it comes to termination policies. Thorough and up-to-date documentation protects your organization and your employees.
What to include in written warnings
Let's keep this simple. All written warnings should contain the date of the occurrence, a clear and detailed description of what happened (don't give your opinion of the employee; just report what you saw or heard), all previous warnings, what needs to change, and the employee's signature. Don't include subjective language like "poor attitude." Instead, include specific behaviors, dates, times, places, and which policy was violated.
Avoiding legal conclusions in employee disciplinary documentation
And here's where we save you some big trouble: Do not use legal conclusions in your written documentation. There is no need to document terms such as harassment or discrimination. Only document the policy violations. This will help keep your notes factual and not seen as a legal admission. Also, your company policies may have more protected activities than those outlined by law.
Maintaining investigatory files
Separate investigatory files from other personnel files and maintain all files in one secure location with limited access. Keep records for at least one year (EEOC requires retention of personnel records for one year and final pay records for three years). When an employee files a charge, retain all files until the charge is fully resolved.
Special considerations for unionized employees
Unionized workplaces are different from non-unionized environments. Under most collective bargaining agreements, discipline can only be imposed for "just cause." The employer must pass seven specific tests: having reasonable rules, providing reasonable notice, conducting a fair investigation, proving an employee committed the offense, taking appropriate disciplinary action, and treating all employees consistently. Union employees have a right to request a union representative to be present during investigatory interviews (Weingarten rights).
Training and Tools for HR Managers
The right training can help managers understand when they need to balance the organization's needs with the fair and equitable treatment of employees.
Vubiz has a range of courses to help HR managers understand the dos and don'ts of employee discipline and termination:
- Effective Approaches to Employee Discipline
- Effective Workplace Discipline [Canada]
- Employee Discipline [US]
- Hiring, Managing, and Terminating [Canada]
Checklist: Do's and Don'ts of Employee Termination
Here's your quick cheat sheet to reference when you are in an employee termination situation. Keep this handy when things get tough in the workplace.
✔ Do: Respond quickly and fairly
Address performance issues as soon as they become evident. Set clear standards for everyone and enforce them uniformly across the organization. Give employees a reasonable time between steps to improve. Involve HR early when an issue becomes serious.
✔ Do: Document, document, document
Document what occurred (not what you think about the person's character). Be sure to include dates, times, places, and any witnesses present. Save all emails and any other messaging about performance issues. Even brief verbal conversations should be noted (who was present and what was discussed).
✘ Don't: Terminate on the spot.
Don't make any termination decisions when you're angry or upset. Get all of the facts before deciding on discipline. Consult with HR or legal for any risky situations. Ensure the employee received the required warnings (unless an exception applies).
✘ Don't: Ignore legal protections.
Don't discipline employees for taking protected leave, filing a complaint, or being in a protected class. Be extra cautious with employees who have whistleblower status or are in protected classes. Keep personal information about employees out of your decisions. Focus only on performance and behavior at work. Employees can win a retaliation claim even if their original complaint was found to be unsubstantiated.
Conclusion
Well-thought-out termination policies do more than provide legal protection to the organization. They also create an environment where employees understand the consequences of their actions.
Documentation is the key to an effective policy. Document the facts of what happened, when it happened, and what policies were broken. Don't include subjective opinions or legal conclusions. Stick to the facts.
Progressive discipline is only effective when it is done properly. Employees need to be given opportunities to correct behavior. However, there are times when immediate action is required, such as in cases of workplace violence or theft.
Don't forget to train your managers so they all handle these situations the same way. Most of all, ensure that no employee should be surprised if and when they are terminated. The results are also entirely predictable if the discipline process is transparent, fair, and consistent.