If you own or run a company, you will inevitably face moments when disciplining or terminating an employee is required. Those moments are often the toughest in an employer’s life.
They are also moments fraught with legal danger.
Here are a number of steps you should take so that you avoid the legal pitfalls.
- Document all disciplinary action.
- All disciplinary documents should contain the following information in writing:
- Factual explanation of the events, behavior or deficiencies which led to the disciplinary action.
- Listing of rule(s) or standards which were violated. Include all which might reasonably apply.
- Make reference to any prior counseling/discipline.
- If applicable, describe the nature and amount of improvement required for maintaining an employment relationship, and the time frame in which results are expected with specific suggestions on how to improve as appropriate.
- If applicable, address the consequences of failing to correct the problem(s) in question.
- Make sure to have your employee acknowledge receipt of the disciplinary document and confirm that they understand it.
- Be sure to notify your employee that she/he can submit a response.
- Document all reasons for any disciplinary actions taken. Always give the real and complete explanation (i.e., don’t disguise a performance-based discharge as a layoff).
- Typically use an “Employee Disciplinary Notice” checklist form to address problems involving non-managers or for initial and/or more routine disciplinary actions.
- Use a “narrative” memorandum when taking disciplinary action against management employees or for issues that are more complex in nature (such as when investigation has taken place or for discipline that involves multiple issues) or for subsequent or final disciplinary actions.
- Depending on the nature of the incident, and only after consultation with the higher level manager and/or Human Resources (and outside counsel when necessary at the request of higher level manager and/or Human Resources), a determination should be made as to whether to issue a notice of proposed disciplinary action before issuing discipline (particularly when termination of employment is contemplated).
- A manager should meet in-person with an employee when taking any disciplinary action (including termination) and have a higher-level manager and/or Human Resources staff person present.
- Understand that the direct supervisor will be the key witness regarding any discipline/termination decision. You will also want to be able to answer “Yes” to the following questions:
- Is my decision based on accurate facts and reasonable belief, not suspicion or emotion?
- Have I documented all facts and actions?
- Have I assembled and preserved the supporting records?
- Have I reviewed the employee’s past counseling, performance and disciplinary record?
- Will the employee know why this action is being taken?
- If applicable: has the employee had sufficient time to correct the condition that led me to take this disciplinary action?
- For terminations (where appropriate): have reasonable steps been taken to attempt to “salvage” this employee? (e.g. training, transfer, demotion or job restructuring)
- If applicable: has the employee had notice of the potential for discipline and opportunity to present his/her side of the story?
- Is discipline consistent with any past practice in similar situations?
- Has this decision been discussed with and approved by appropriate levels of higher management and Human Resources (including possible review by outside counsel as necessary)?
- Am I ready to take full responsibility for the decision?
- Don’t humiliate any employee (handle discipline/termination privately with minimal embarrassment to the employee).
- Don’t treat the employee “like a criminal” (i.e., the “perp walk” out of the building), unless there is good reason (i.e., the employee is disrupting the workplace or is being terminated for an act of violence).
- At time of employment termination, provide written notice of termination.
- If an employee resigns, obtain a resignation letter. If manager is notified of a resignation via phone, typically send letter confirming and accepting resignation.
- Don’t give references for former employees.
- Don’t discuss discipline/termination with others who do not need to know and stop others from doing so.
- Send all original, signed disciplinary and termination paperwork for filing in a personnel file in Human Resources.
- Ensure unemployment compensation paperwork coincides with the termination reasons given to employee.
- Properly pay departing employee pursuant to legal requirements.
- Employees who quit and those who are laid off must be paid final wages on next regular payday.
- Employees who are discharged must be paid final wages by next business day.
- Make only proper deductions from final pay.
- Comply with vacation pay policy/practice.
If you’re an employer needing to discipline or fire and employee and would like help with the process, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.
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