By Laurey West, SHRM-CP, Director of Operations

Terminating an employee is never a fun experience for the supervisor or the employee that is being fired. Unfortunately, not handling this process carefully can land employers in hot water including wage claims, unemployment claims and costly civil lawsuits.   Employee Resource Administration, L.P. works with our clients to help reduce the likelihood of these occurrences by making sure that the client has an up to date employee handbook that covers all applicable state and federal employment laws with signed employee acknowledgements, current job descriptions for all positions, and progressive discipline documentation for verbal and written warnings along with providing human resources consulting.

While most states are “at will” employment states, employers must understand that the employee is also “at will” to file a lawsuit or file a claim with the Department of Labor. Our goal as a strategic partner is to provide guidance to our clients that will help reduce the threat of these occurrences.

Here are some additional very important steps an employer should take prior to terminating an employee for poor performance:

1. Timing is important. Start documenting immediately if you notice a pattern of poor performance or behavior that is unacceptable. For every verbal conversation about performance improvement, keep a time stamped document in word or excel with what was discussed the day the conversation with an employee occurred. Avoid any language related to the protected classes or anything of a personal nature or feelings about an employee. Stick to the clear facts of poor job performance or work behavior. Let the employee know the clear expectations, offer additional training if requested and give the employee a date that you will review the performance again. Also, let the employee know that this verbal performance improvement plan will be saved in a confidential HR electronic file. This is also why it is important to have a documented progressive discipline policy in your handbook that provides acceptable and unacceptable behaviors along with the consequences. It is a good practice to review the handbook policy that relates to the verbal warning if possible.
2. Make every effort to revisit the performance plan with the employee on the date given in the verbal warning. If the employee has not improved the work performance as requested by supervisor, the manager should provide a written performance improvement plan and another date for review. No one likes to be blindsided, so having a clear expectation along with consequence for failure to improve with a timeline will reduce an employee being surprised by the termination. It is important to include the dates, times and topics of disciplinary conversations; the warnings given; and examples of performance issues.
3. It is critical that the final incident involving termination ties to the previous verbal and written warnings.  If the employee files for unemployment, the TWC officer will ask for copies of the verbal and written warning(s) and what the final reason was for terminating the employee. The final incident should tie to the verbal and written warning(s). Documentation is key during the termination process.
4. Before terminating the employee, there are other things to consider:

• Does the employee have key(s) to your building? Alarm codes? Make sure that all access is removed to his or her electronic and physical access to the workplace prior to the employee’s termination.
• Does the employee have access to credit cards or banking information or vendors? Make sure all access is removed prior to the termination.
• Does IT need to remove access to certain websites or work e-mail?
• Does the employee have tools, computers, cell phone or other office materials that need to be returned?

We assist our clients with creating a pre-termination checklist to follow with every termination.

5. It is also a good idea for managers to touch base with their human resources manager to ensure there are no current investigations or claims that may pose a particular risk to termination of an employee. Also, check with your payroll manager to see if the employee has any outstanding loans.
6. It is best to have other employees that work closely to the employee’s workspace leave the area during the termination to allow the employee to return with the manager to collect their personal items. This reduces the employee feeling disrespected or embarrassed. Have boxes available as not to make the situation more awkward.
7. Ask another manager to be present for the termination. Having a witness is important and also to be available to call 911 if the termination escalates into a threatening situation.
8. Prepare and review termination paperwork prior to the meeting with the employee. Plan to have the meeting in a private office or confidential area. Another consideration is how will this be communicated to your team and any outside vendors the employee may have a working relationship with after the termination takes place.

During the termination:

1. During the termination, stick to the facts of why the employee is being terminated and keep it brief. Explain to the employee when he or she will be paid the final paycheck according to state laws. If you are offering any type of severance package, do make sure an employment lawyer prepares and/or reviews the document before providing to employee. Discuss severance terms with employee including revocation periods and terms. In addition, encourage the termed employee to have their own attorney review the document. Make sure to notify payroll regarding final pay arrangements immediately following the termination. Collect keys, equipment or tools that the employee has and offer a time for any employee who has company items in their possession, but just not with them on that day. Notify your benefits’ manager or broker if COBRA should be offered to the employee. This should also be done on the date of termination.
2. An employee may become emotional. Let the employee know the decision is final, but that you will step out for a few minutes to allow the employee a moment in private. Have a box of Kleenex available. Try to be as respectful as possible and treat the employee with dignity. You never know what the employee is dealing with on a personal level.
3. Let the employee know that you will be escorting them to their work area to collect any personal items and that other employees will not be present.
4. Escort the employee to their car after the employee has gathered their items and offer to carry a box if needed.

Another great advantage to partnering with Employee Resource Administration, L.P. is our team can assist with this process.

Legal Disclaimer:  Employee Resource Administration, L.P. has made this web site and the materials shared on it available to the general public for informational purposes only.  We are not employment lawyers or licensed to practice law; therefore, it is important for you to know that the information provided is not a legal opinion or legal advice of any kind.  The content of this web site contains general information and may not reflect current legal developments, employment law verdicts or settlements.  Employee Resource Administration, L.P. expressly disclaims all liability in respect to actions taken or not taken based on any or all of the content of this site. We recommend seeking professional legal counsel before acting on any information provided in this web site.