How To Hire, How to Fire
© 2003 Door & Access Systems
Publish Date: Spring 2003
Author: Naomi Angel
How To Hire, How to Fire
By Naomi Angel, DASMA Legal Counsel
Editor's Note: This is part two of a special two-part series on the critical legal aspects of hiring and firing. In part one, in our Winter 2002-2003 issue, Naomi offered helpful counsel on the hiring process. This final part reveals vital considerations when terminating employees.
Regular performance evaluations are important to both improve the employee’s job performance and morale, and to protect the employer. Superficial reviews that fail to address weaknesses spell trouble and leave the employer vulnerable.
The personnel file should contain adequate information to support any employment decisions made in the future. If you don’t create the necessary paper trail, you may want to delay a termination until you’ve developed that record.
Before You Fire Someone
Before you terminate an employee, look at all the circumstances and consider the consequences of your decision.
Is the employee in a protected class? If so, tread carefully! Review the situation again; make sure that the employee is being treated consistently with other employees.
Questions to ask yourself:
- Is there a pattern of discrimination, or even the appearance of such a pattern, that would suggest there be further investigation before termination?
- How does the paper trail in the personnel file compare to that in other employees’ files, and is it justified?
- Was the employee’s behavior triggered by treatment he/she received from others?
- Does the employer intend to replace the over-40 employee with another younger, less expensive individual?
- Has the employee filed a worker’s compensation claim or received an award? Avoid any claim that action was taken as retaliation against the employee.
- Is the employee due to vest in a pension plan, or receive a significant commission or bonus that could be lost as a result of termination? If so, review documentation with counsel to make sure that you can defend your action.
Personnel File and Work Record
- In the employee’s personnel file and work record, is there supporting documentation to justify your action? Make sure that performance evaluations do not suggest factors that are inconsistent with a termination action. Pay particular attention to any changes in supervisors, or other possible mitigating factors, that might indicate less severe action is warranted.
- Meet privately with the employee. Be clear and direct without being hostile or abrasive. If possible, two people should be present at the meeting. Give the employee an opportunity to respond and vent, if necessary, but stay in control of the discussion.
- If termination is because of a reduction in work force, tell the employee.
- If termination is due to poor performance, performance evaluations should have already notified the employee.
- State the terms of any severance package and explain the termination process. Review all financial benefits. Obtain a release for references.
- Use good judgment in communicating the termination to other employees. Usually, a neutral explanation is sufficient.
- Send a COBRA notice to the departed employee. Failure to do so could result in substantial statutory fines.
Establish and communicate lawful, nondiscriminatory policies for recruiting, hiring, disciplining, and terminating employees.
Be consistent -- ask the same questions of every applicant. Take notes, but confine them to job-related facts, not opinions. Ask for additional information based on applicant’s responses. Be aware of body language and be a listener, not a talker.
Conduct the same background checks on all applicants for the same position. Anticipate problems by making a paper trail that explains all employment decisions, is current, and is readily located in the employee’s personnel file. Such proactive measures should go a long way in protecting the wise employer.
Naomi R. Angel serves as legal counsel to industry associations and practices with the Chicago law firm of Howe & Hutton, Ltd. She can be reached at 312-263-3001 or firstname.lastname@example.org.