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Firing an Employee the Right Way

Author: Joel N. Kreizman|June 3, 2015

Firing an employee is arguably one of the least fun parts of being the “boss,” whether you own a small business or lead a corporate human resources department.

Firing an Employee the Right Way

Firing an employee is arguably one of the least fun parts of being the “boss,” whether you own a small business or lead a corporate human resources department.

However, there are ways to firing an employee that make the process more humane and less likely to result in legal liability.

While it can be tempting to get it over quickly, it is always a good idea take a “time out” (in the absence of a physical assault) before terminating the employee in order to engage in thoughtful review of the issues and to answer the following questions:

  • Why are you terminating the employee? Has the employee been warned and given an opportunity to correct the problem (even if not provided for contractually)?
  • Will the record reflect these reasons for your decision?  What does the personnel file say (or not)? Are you claiming that the employee is incompetent right after you gave him/her a good performance review and a raise?
  • Have you followed all due process procedures that may appear in any personnel policy or employee handbook?
  • How can the employee hurt you? Can they turn this into a claim of harassment, retaliation, whistleblowing, etc? Have you misclassified the employee as an independent contractor, failed to pay overtime or otherwise engaged in some violation of the employment laws?
  • What protected class does the employee come from (age, race, religion, etc.)? Will the employee be able to successfully claim discrimination (even if not true)?

If these questions cannot be answered somewhat comfortably, it is better to take some time to clean up the record over time to provide a defensible employment action rather than acting rashly and being at risk that some or all of the charges or claims will stick. Wrongful termination lawsuits are on the rise, with suits spiking nearly 400 percent over the last 20 years. According to statistics collected by the Equal Employment Opportunity Commission, they are currently the number one labor claim brought against employers, with suits alleging violations of everything from the New Jersey Law Against Discrimination to the federal Family and Medical Leave Act.

Lastly, always follow the golden rule: terminate the employee the way that you would wish to be terminated.  Undue harshness will only render your ex-employee a bitter enemy.  Be kind and understand that you are dealing with a fellow human being with feelings.  Yes, we have to make the “right” decisions, even when they hurt someone else, but there is no need to be mean or disrespectful.

Firing an Employee the Right Way

Author: Joel N. Kreizman

However, there are ways to firing an employee that make the process more humane and less likely to result in legal liability.

While it can be tempting to get it over quickly, it is always a good idea take a “time out” (in the absence of a physical assault) before terminating the employee in order to engage in thoughtful review of the issues and to answer the following questions:

  • Why are you terminating the employee? Has the employee been warned and given an opportunity to correct the problem (even if not provided for contractually)?
  • Will the record reflect these reasons for your decision?  What does the personnel file say (or not)? Are you claiming that the employee is incompetent right after you gave him/her a good performance review and a raise?
  • Have you followed all due process procedures that may appear in any personnel policy or employee handbook?
  • How can the employee hurt you? Can they turn this into a claim of harassment, retaliation, whistleblowing, etc? Have you misclassified the employee as an independent contractor, failed to pay overtime or otherwise engaged in some violation of the employment laws?
  • What protected class does the employee come from (age, race, religion, etc.)? Will the employee be able to successfully claim discrimination (even if not true)?

If these questions cannot be answered somewhat comfortably, it is better to take some time to clean up the record over time to provide a defensible employment action rather than acting rashly and being at risk that some or all of the charges or claims will stick. Wrongful termination lawsuits are on the rise, with suits spiking nearly 400 percent over the last 20 years. According to statistics collected by the Equal Employment Opportunity Commission, they are currently the number one labor claim brought against employers, with suits alleging violations of everything from the New Jersey Law Against Discrimination to the federal Family and Medical Leave Act.

Lastly, always follow the golden rule: terminate the employee the way that you would wish to be terminated.  Undue harshness will only render your ex-employee a bitter enemy.  Be kind and understand that you are dealing with a fellow human being with feelings.  Yes, we have to make the “right” decisions, even when they hurt someone else, but there is no need to be mean or disrespectful.

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