Ask the Expert
From
FoodStartUpHelp.com
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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