Ask the Expert
A continuing series of labor related questions answered by Attorney Denise Anderson.
(Editor’s note: It is a very big step when a new business owner hires employees for the first time. Unfortunately, sometimes a new employee turns out to be less ideal than hoped for. Members of FoodStartUpHelp have experienced new business owners that are either fearful of firing employees (thus reluctant to hire) or don’t know how to do it properly. FoodStartUpHelp has asked Labor Attorney Denise Anderson to provide some information on the topic.)
How to Fire an Employee
No Surprises: It should never be a surprise to the employee and you should never have to give a reason when you actually fire the employee. Here’s how to make sure you do it the right way and don’t end up in court justifying your decision.
The Good, the Bad, the Not So Bad: First, take the time to “sandwich” your performance warning and do it on a regular basis. No one likes to hear bad news but it is easier for an employee to hear what you have to say when you say it between two pieces of praise. For example, if your employee is always late for his shift, you can approach him in the morning when he arrives and first tell him that you noticed how he cleaned his station when he left the day before, remind him that he needs to arrive on time for the beginning of his shift and note that he is 15 minutes late and then say something about having another great day. When he is late the next time, remind him of your previous conversation and how important it is that he is on time for his shift and, this time, tell him that he will be disciplined the next time.
Adopt a Policy: Second, you must adopt a discipline policy and stick with it. Too often, an employer says one thing and does another. Just like being a parent, an employer must be consistent and enforce the rules evenly with all employees. No favoritism or exceptions. While there is a lot to be said about a “three strikes and you’re out” policy, it requires documentation and time. The easiest policy is a list of conduct for which an employee can be disciplined within the discretion of the employer and another list for which an employee can be immediately terminated within the discretion of the employer. The discipline policy should also state who can discipline and to whom the employee can complain or bring questions.
Cut Your Losses: If you follow the first two rules, the employee will have been warned and will be on notice of the consequences of his conduct. When the employee does not improve, let him go.
Support Your Decision: Be prepared to support your decision with specific data, warnings and realistic goals to improve. The third rule to follow is to document your observations and conversations with an employee and file your written paperwork in a separate file for that employee. Each employee must have a file that contains routine paperwork, including an application for employment, a W-2 and an I-9. Any forms required by the state or federal governments, including minor consent forms and health department forms, must be maintained in the employee’s personnel file. If you conduct formal written performance reviews, on a regular basis, those forms must be maintained as well. However, your personal notes about discipline or performance may be kept in another file that is maintained by you as the manager. When you are asked to support your decision, you will be able to refresh your recollection of the events and, in court cases, provide written evidence of your decision.
Be Private: Never discipline an employee, particularly a termination, in public. The fourth rule is to conduct your firing in a private area, preferably with a door. When the meeting is over, you can leave or ask the employee to leave.
Don’t Do It Alone: You should always have a witness present when firing an employee. You never know how an employee will take the news and you want to protect yourself against a retaliation lawsuit. If the employee asks to have a witness present, you should refuse. You do not want to deal with that employee’s observations, judgments and potential complaints as well as the employee being fired.
Be Clear and Direct: You may want to sugar coat the reasons for termination or to have a cover story to protect feelings. The best avenue is to simply tell the employee you have made a decision to let him go and explain his options and what will happen next. When asked to explain your decision, state again that your decision is based on his performance and remind him that this is the consequence of not meeting expectations. Don’t talk too much and keep the conversation strictly on your decision. Do not relate specific instances or examples of performance or your observations. You will have plenty of time to justify your decision if the employee questions his termination either through a state or federal agency or lawsuit. You must make it absolutely clear there is no room for discussion and that your decision is irreversible.
Lay Out the Options: If the employee is entitled to any benefits, tell him and explain how to get the proper information. Tell the employee when to expect his last paycheck and make arrangements to mail it to him. Ask the employee to leave the premises immediately and arrange a time or manner of returning to get his personal belongings. Ask the employee for keys or other items that belong to the business. You should accompany the employee out of the business premises. If you have not already changed passcodes to the computer or locked email access, you should do so immediately.
Do it on a Monday: Never fire an employee on a Friday or weekend. It is best to fire an employee during the first part of a week to allow the employee time to look for another job. You want to transition the employee into looking for another job and it is easier to begin that process during the week.
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