How to Fire an Employee Without Getting Sued

Have you ever wanted to fire someone but didn’t act? If so, you are not alone. In exploring reasons why CEOs fail, a 1999 article in Fortune magazine found that CEOs were often unwilling to fix people problems quickly. Interestingly, these CEOs confessed that they had ignored an inner voice that warned them of a problem and refused to listen to the people around them. When the CEOs finally did acknowledge that the person had to go, their top reason not to fire the problem employee was fear of being sued.

Not taking action has its own set of consequences, including wasing manager’ time and effort, increased error rates, lost opportunity, and negative impact on other workers’ morale and productivity. And, in the worst set of circumstances, you can be sued for not firing someone who needs to go.

10 Tips to Avoid Being Sued for Wrongful Termination.

1)Make sure that the employees know what is expected of them by providing them with up-to-date job descriptions and by regularly and clearly communicating your performance and behavior expectations.

2)For non-urgent matters, like lateness, use disciplinary procedures that are predictable, follow a logical sequence, and are flexible. The typical processes is verbal warning, written reprimand, probationary and final written warning, and termination. Following this sequence ensures that termination is a logical consequence and is not a surprise to the employee. For urgent matters, like bringing a weapon into the workplace, you can fire someone immediately.

3)If the facts of what the problem employee is or isn’t doing are at all unclear, conduct a thorough and unbiased investigation.

4)When you first notice an issue with an employee, begin keeping accurate written records. Document and date every incident and meeting.

5)Never fire someone illegally – because they filed a work’s compensation claim, were a “whistle-blower”, are taking FMLA, etc.

6)Involve your human resources department and follow your company policies.

7)Ensure that members of a protected class (race, color, religion, nationality, gender, age, disability) are treated the same as employees outside the classification.

8)Conduct the termination face-to-face,include a witness, and meet in a private setting.

9)The termination meeting should last no more than 15 minutes. Tell the employee that he/she is being terminated, give the reason, ask for his or her explanation, and make clear that the decision is final. Most workers who sue their former employers do so because they want a full explanation of why they were let go or want a chance to tell their side of the story.

10)Explain what benefits the employee will receive and when he or she will receive their final paycheck, offer severance and career outplacement, explain your job reference policy, review confidentiality and non-compete agreements, and collect company property.

NO MATTER WHAT, TREAT THE EMPLOYEE WITH RESPECT

The Bullies Have Left the Playground

If you have ever experienced an office bully, if your strained relationship makes you feel unproductive, and if you go to work with a knot in your stomach, then you are not alone. In 2013, the Workplace Bullying Institute (WBI) reported that 35 percent of the U.S. workforce has experienced workplace bullying. Bullies yell, spread rumors, roll their eyes, or purposely forget to invite you to meetings. According to WBI, workplace bullying is “repeated, health-harming mistreatment of one or more persons, by one or more perpetrators in the form of verbal abuse, offensive conduct/behavior, and work interference.

Rakesh Malhotra, founder of Five Global Values, writes, “Most bullies portray themselves … as polite and respectful, as they are charming in public.” Bullies often see themselves as the victim and don’t get or care how they make others feel.

“The biggest problem I have at work,” one bully says, “is that I don’t get respect from others.”

When bullies run amok in the workplace, they can cause emotional and psychological turmoil. Dr. Gary Namie, who is leading a campaign to enact the Healthy Workplace Bill, which requires employers to implement policies and procedures to prevent workplace bullying, says victims can suffer from “hypertension, auto-immune disorders, depression, anxiety and … have their work and career disrupted.” According to one victim, “I did not go to the satellite office for months because I did not want to see the bully.”

To learn more about workplace bullying, The Lindenberger Group, a human resources firm based in New Jersey, conducted written surveys and interviews last year with 121 participants, ages 20 to 65, representing companies with 50 to more than 5,000 employees and from a variety of industries.

More than 80 percent of respondents said they believe that bullying is a serious problem, but fewer than 25 percent of companies do anything about it.

Bullying includes swearing, shouting, humiliation, and unwarranted criticism and blame. According to one victim, “I had to do an errand, so I left the office and locked the door. When the bully could not get in, she called me on my cell phone, cursed at me, and threatened to have me fired. The next day another employee showed the bully that she had the key to the office on her key chain. She never apologized. Her response was just ‘Oh, silly me.’”

In the study, more than 50 percent of respondents witnessed or were victims of bullying in their current workplace (the number jumped to 60 percent when citing a previous company).

More than 95 percent of victims reported increased stress, and 90 percent reported lower job satisfaction. Other effects include health complaints (65.4 percent) and lower productivity (57.9 percent).

According to the data collected, respondents said men are bullies more often (55 percent) and women are victims most of the time (77.1 percent). Most victims (59.3 percent) and bullies (68.6 percent) polled are ages 41-60, which leads to an interesting question: Will millennials (born 1977-92), known to “play well with others,” be less prone to bullying?

Another finding is that most bullies (77.6 percent) are at a level above the victim. In the movie The Devil Wears Prada, the bullying boss is described as being “not happy unless everyone around her is panicked, nauseous, or suicidal.”

The majority of respondents (78.2 percent) stated that no actions were taken to correct bullying. However, when action is taken, coaching is the preferred strategy (50 percent) followed by termination (38.9 percent).

Most respondents believe that bullies have psychological issues (88.1 percent), while others see bullying as career driven: to weed out competition (60.3 percent) or get ahead (52.4 percent). One victim states, “Our office bully needs to learn to control her temper and stop throwing people under the bus.”

Eighty percent said they favor laws to prevent workplace bullying but believe that laws have not been passed because employers worry about lawsuits (63 percent) or don’t understand differences between bullying and harassment (59.7 percent). Bullying can be directed at anyone regardless of race, religion, nationality, gender, age, disability, or skin color. Harassment is treating someone differently because of those differences.

More than 90 percent said they think that discipline is the best course of action, 88.8 percent favor policies, 86.4 percent want to know how to report bullying, and 84.8 percent favor training. According to one executive, “It’s important to take complaints seriously and act quickly.

The course of action for human resource professionals is clear: Develop policies, provide training, let employees know how to report bullying, offer coaching, and create exit strategies. The course of action for managers is also clear: Take complaints seriously and follow through with disciplinary action.

Everything You Need to Know … About Employee Handbooks

Employee handbooks should be designed to do more than just communicate information and answer routine questions; your handbook should help you achieve your organizational goals and objectives. Thus, while a list of rules of conduct and a summary of benefits are important information, you should evaluate your handbook on its ability to help your organization meet its objectives.

One purpose of your employee handbook is to help you attract and retain employees. Your employee handbook should help your employees answer — hopefully in the affirmative — two important questions: “Why should I work here?” and “Why should I continue working here?”  If your employees are not receiving a positive message about your organization, your handbook is not doing its job.

Your handbook should also help convey useful information about hours of work, paydays, leaves of absence, and benefits. More importantly, your handbook should help create an atmosphere of trust and respect and give your employees a sense of belonging.

At the same time, your employee handbook must help you comply with your legal obligations and ethical requirements. It must also help you protect management’s right to make changes and adapt the organization’s policies and programs as needed.

Since your organization and its employees are affected by all of your written and unwritten policies and procedures, you should ensure that your employee handbook incorporates as many of your organization’s written and unwritten policies and procedures as practical. You must further ensure that your handbook communicates top management’s commitment to your policies. As a result, your handbook will promote consistency and assist you in preventing claims of disparate treatment.

You should regularly assess your employee handbook, not only from the standpoint of how well it communicates policies and procedures, but also from the standpoint of how well it helps you achieve your organization’s goals and objectives. Employee handbooks that fail to help your organization succeed in these areas should be rewritten.

Below is a recommended list of employee handbook topics:

SECTION ONE: GENERAL EMPLOYMENT POLICIES

This is where you define the basic policies that explain how, when and where your employees are expected to work. You may want to include the following information in this section:

Purpose of Handbook
Vision and Mission
At-Will Nature of Employment
This Handbook is not a Contract Statement
Reservation of Rights Statement
Statement of Non-Discrimination
Sexual and Other Unlawful Harassment Policy
Disability Accommodation Policy
Business Ethics and Conduct Expectations
Ownership of Work Materials Policy
Conflict of Interest Policy
Whistle Blower Policy
Access to Personnel Files Policy
Non-Disclosure (Confidentiality) Policy

All of these elements are important in their own way. Without a non-disclosure agreement, your employee could breach confidentiality and have no idea that they were not supposed to discuss a topic outside of work. Without a conflict of interest policy, you might have an employee seek a business relationship with another organization that puts your operation at risk, yet have no recourse as your policy was not spelled out. Therefore, it is important to include most, if not all, of the sections above in your employee handbook.

SECTION TWO: EMPLOYMENT STATUS

This is another category that is important in your employee handbook. You may want to include the following two sections:

Introductory Period: if you wish to have a “trial” period for new employees, define what that period will look like and how long it will last.

Employment Categories: what does it mean for someone to be defined as temporary, part-time, full-time, exempt, non-exempt, etc.?

SECTION THREE: RECRUITING AND HIRING

Your employee handbook should lay out the ins and outs of your employees’ legal obligations during their employment at your organization as well as your process for recruiting and onboarding. At a minimum, you need to cover your policy on eligibility to work in the U.S. The following categories are also recommended, but not required:

Job Posting and Employee Referrals Process
Employment Applications Process
Employment Reference Checks Policy
Policy on Employment of Relatives
Relocation Expense Policy
Process for Reemployment of Former Staff Members
Employment Offer Policy
Position Descriptions
Promotion Policy
Transfer Policy

SECTION FOUR: COMPENSATION AND SALARY ADMINISTRATION

Include the following items in this section:

Timesheet Policy
Overtime Policy
Pay Periods

These items are also recommended:

Compensation Philosophy
Pay Deductions and Setoffs Policy
Direct Deposit Process
Personnel Data Changes Process
Administrative Pay Corrections Policy
Compensatory Time Off Policy
Pay Advance Policy

SECTION FIVE: GENERAL WORKPLACE POLICIES

What time should I show up for work? What is the dress code? How many breaks can I take? Spell this out. In order to ensure the best work ethic and safe work environment, you may want to include the following sections in your employee handbook:

Working Hours
Attendance and Punctuality Expectations
Safety Protocols
Workplace Violence Prevention
Smoking in the Workplace
Drugs in the Workplace
Security Inspection Policy
Acceptance of Gifts, Gratuities, and Services Policy
Authorization to Sign Contracts & Agreements
Communication with the Press

These items can also be helpful:

Work Breaks Policy
Lactation Breaks Policy
Emergency Closings Policy
Flexible Work Arrangements
Personal Appearance/Dress Code
Open Door Policy
Housekeeping Policy
Visitors in the Workplace
Children in the Workplace
Staff Travel Recommendations
Corporate Credit Card Policy
Political Activity Policy
Solicitation Policy
Confidentiality Policy

SECTION SIX: EMPLOYEE BENEFIT PROGRAMS

You may want to include some or all of the following items in this section, depending on your specific benefits package:

Benefits Overview
Medical/Dental/Vision Benefits
Flexible Spending Accounts
Transit/Commuting Benefits
Life Insurance/Disability Benefits
EAP
Retirement Savings Plan
Statutory Benefits (Workers Compensation, Social Security, Unemployment)
Education Assistance
Benefits Continuation

SECTION SEVEN: LEAVE

By creating guidelines of when it is appropriate to paid time off (PTO), vacation, or sick days, your employees will be better able to manage their leave time. Include the following sections in your employee handbook:

Holidays
Vacation Policy
Sick Leave Policy
FMLA/State FMLA
Military Leave Policy
Jury Duty

The following items can also be helpful:

Personal Leave Policy
Bereavement Leave Policy
Parental Leave Policy
Medical Leave Policy
Pregnancy-Related Absences
Unpaid Leaves of Absence
Court Leave
Other State-defined Mandated Leaves
Severe Weather and Emergency Situations
Overtime

SECTION EIGHT: ORGANIZATIONAL PROPERTY AND TECHNOLOGY

Every organization is different as to whether they allow their employees to use their phone or computer at work, and whether they supply their employees with these tools.  Include the following policies in this section:

Document Retention Policy
Phone and Mail Systems Policy
Computer and Email Usage Policy
Social Media Policy
Smart Phone Issuance and Use While Driving

The following items can also be helpful in this section:

Personal Property
General Use of Equipment
Internet Usage Policy
Use of Cell Phones Policy
Business Expense Reimbursement
Company Vehicles

SECTION NINE: EMPLOYEE PERFORMANCE AND WORKPLACE CONDUCT

How do you expect your employees to behave while at work? What qualifies as misconduct? What kind of performance is considered grounds for termination? How will employee performance be evaluated? Include these policies:

Personal Relationships Within the Workplace
Employee Conduct and Work Rules
Progressive Discipline Process
Problem Resolution Process

You may also consider adding the following items in this section:

Outside Employment Policy
Performance Evaluation Process
Employee Relations
Complaint Procedure
Suggestion Program

SECTION TEN: SEPARATION FROM EMPLOYMENT
Include the following items in this section:
Employment Separation
Return of Property
Non-Compete and Conflict of Interest Policy

You may also consider including an item on references for current and former employees.

SECTION ELEVEN: EMPLOYEE ACKNOWLEDGMENT FORM

Employers often worry that their employee handbooks will be used against them in litigation. In particular, you could be concerned that employees will claim that your policies are contracts that must be followed exactly. However, the simple act of putting your policies in writing should not create a binding contract, if the policies are written as guidelines that explain "generally" or "typically" what your requirements are and how employees "normally" will be treated.

Label your “introductory period” policy carefully. Do not use the traditional phrase "probationary period" with its union security clause connotations. Instead, use you might want to use the term, “introductory period”, meaning that the new employee is being introduced to the organization and that both the employee and the company have the opportunity to evaluate fit.

Include a clear at-will statement in the policy. An example of an effective statement is: "Your employment with the Company is considered to be at-will, and the employment relationship may be terminated at any time by either party." Make sure other policies also include appropriate at-will disclaimers. It is not enough to include the at-will statement just in the introductory period policy. You also should have a separate at-will policy and discuss the issue in other policies, such as those addressing hiring, termination, discipline, performance evaluation, and complaint resolution.

No matter the size of your organization, a well-written, up-to-date, legally compliant employee handbook is a best practice that will benefit you and your employees.