Firing Problem Employees: A How-To Guide

“They come into work disheveled and drunk. They swear while talking to customers. They have sex with a co-worker in the stockroom. Or worse yet, they steal money from the company or threaten to hurt the boss. Some employees turn out to be bad news for a company and need to be fired, but how can a company show misbehaving workers the door while protecting itself from wrongful termination or discrimination suits?”  Our friends at Law360 provide great insight on the difficult and risky task of terminating an employee, here

Attorneys say employers need to handle terminations carefully and think before they act, because if a worker was disruptive on the job, he or she may do even more damage after being fired. Dismissing workers on a whim without doing a proper investigation can haunt an employer for years to come in a drawn-out litigation battle.

Here are five best practices for companies before they cut bad workers loose:

(1)        Put Workers on Notice

If employers are going to expect workers to act appropriately in the workplace, they need to inform workers through their code of conduct what the rules are and what kind of misconduct could be subject to discipline and termination.

(2)       Keep Good Records

Many terminations come down to a he-said-she-said situation, and it’s important for companies to keep a detailed record of any misconduct. A common mistake employers make is confronting the employee who is accused of misconduct by a supervisor or co-workers without being properly prepared. Going to the accused worker too early and then having to go back to talk to witnesses gives the accused worker time to come up with a story.  Instead, companies should first talk to any third parties who saw the misconduct, review any emails or other electronic evidence and then interview the worker at issue.

(3)       Be Consistent

Employers run into problems when they selectively enforce their code of conduct.

(4)       Set Up a Communication System

If a company thinks a potential termination is likely to lead to litigation, it may want to establish a structure for communications related to termination deliberations to limit what information is subject to discovery later on in a suit.  For example, two managers exchanging emails that debate the merits of a termination should keep in mind that written internal communications over the deliberation process can be subject to discovery in a future lawsuit. But if the managers bring in-house or outside counsel into the conversation, they are maximizing the chance that the discussion is deemed an attorney communication that is privileged.

(5)       Be Clear and Respectful

When a company has decided to terminate an employee for violating company policy and holds the termination meeting, the employer should be clear about why the worker is being fired and remember to convey respect to the outgoing worker.

The complete Law360 article is available here with additional insight and risk management tips for employers tasked with the inevitable challenge of terminating the problem employee.

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