Chapter 18 HR

Terminating an Employee

For an employee, the loss of a job can be lifealtering, affecting his ability to care for himself and his family, damaging career prospects, and damaging self-esteem. For an employer, the undertaking is stressful, sometimes dangerous, and apt to prompt legal actions. If a termination is performed poorly it will likely result in legal claims. The legal standards governing termination differ greatly for public sector employees or unionized employees, and private sector employees. Private sector employees are largely governed by the "employment at will with exceptions" standard. Unionized and public sector employees are governed by the "just cause/due process" standard which is more stringent.

Impermissible grounds for termination

Legal protections for wrongful discharge may arise from these sources: Constitutional Statutory Common law contractual tort claims Some protections are available only to public sector employees, union employees, or employees with individual employment contracts

Ending the employment relationship

-Length of time: a specific agreed term expires -Project based employment-when project is done, so is the employment relationship -at-will termination or quit -termination

Why people get fired

1. Dishonesty, evasion, or lack of integrity on the job 2. Lying on a resume 3. Refusing to follow directions and orders 4. Talking too much and conducting personal business at work 5. Inconsistency - unreliable work and behaviors 6. Inability to get along with other people / reducing group productivity 7. Inability to actually do assigned tasks 8. Performing tasks slowly, with numerous errors 9. High absenteeism rate 10. Drug and/or alcohol abuse 13. Complaining about your boss or company on Facebook or Twitter 12. Being drunk at work 11. Unauthorized surfing of the internet, or breach of company email policy 10. Refusing to follow orders or directions 9. Sexually harassing your co-worker 8. Engaging in office gossip, or complaining about work 7. Becoming embroiled in office politics 6. Sleeping on the job 5. Getting caught lying or stealing 4. Absenteeism or bad time-keeping 3. Being caught lying on your job application or resume 2. Bringing your personal problems into the office 1. Poor performance

Impermissible grounds- breach of an implied contract

But most employees do not have express contracts; they are employed at will However, under the implied contract exception to employment at will, the right of employers to terminate at will can be limited Written or oral statements by employers, and their course of conduct in dealing with employees, can give rise to an implied contract Criteria for Determining the Existence of an Implied Contract A specific promise was made The promise was made frequently and consistently The source of the promise was someone with authority to offer it The promise was communicated to the employee The promise was not highly conditional The employer's entire "course of conduct" was consistent with the promise

Constructive Discharge

Disputes over whether an employee quit or was fired are common. If the employee truly resigned, she cannot sue for wrongful termination. A quit is a termination when an employer creates intolerable working conditions with the intention of forcing an employee to quit - a constructive discharge. The quit is construed as a termination if, under the circumstances, a reasonable person would have felt compelled to quit. To determine whether an employee who resigned was constructively discharged, a court considers the following factors: demotions cuts in salary reductions in job responsibilities reassignment to menial or degrading work reassignment to work under a younger supervisor badgering, harassment, and humiliation calculated to encourage resignation offers of early retirement on terms less favorable than the employee's former status

Handling Terminations

Employers should consider alternatives to termination, including retraining, transferring, demoting, suspending, and signing last-chance agreements. The option of resignation is best pursued when there are growing concerns about the performance or conduct of an employee, but a termination is not yet imminent. Resignations should be documented in writing and stipulate the voluntary nature of the resignation. Employees should be placed on administrative leave if circumstances warrant their removal prior to completion of an investigation or proper review of a termination decision. The reasons for termination decisions and the process followed should be solidly documented. These materials should be in writing, should be produced prior to the termination decision, and should support the decision to terminate. Employers should provide employees with a clear and succinct statement of the reason(s) for their termination. Employers should generally avoid making public statements about terminated employees and the reason for their termination. Discharges should be handled in a reasonable, dignified Unless there are compelling security concerns, terminated employees should be allowed a reasonable amount of time to clear out their offices and take care of other business, rather than be ushered out of the workplace. Final wages should be paid quickly and within any period provided for under state law. SDCL 60-11-10 , 60-11-11 Unless termination is for gross misconduct, terminated employees should be notified of their right to health insurance coverage under COBRA. Employers should consider offering severance pay in exchange for releases of legal claims related to terminations. For employees over 40, compliance with ADEA is required.

Employment at will with exceptions

Employment at will Existed prior to 1937 There was no such thing as wrongful termination Employment at will with exceptions An employer may terminate an employee for any reason except prohibited reasons (exceptions) developed by statute or common law since 1937 Applies to a significant majority of the workforce Just cause/due process Employers bear the burden of proving that terminations were proper and based on good reasons Applies to about 20% of workforce

Impermissible grounds - whistleblower protection

Most states have whistleblower protection laws, although some apply only to public-sector employees Some whistleblowers are protected under laws that pertain to specific safety-sensitive industries (including aviation and nuclear power) A variety of federal environmental laws incorporate whistleblower protections for employees reporting environmental violations by their employers Federal government employees are covered by the federal Whistleblower Protection Act (WPA) The WPA prohibits taking or failing to take a personnel action because an employee or applicant has disclosed information that is reasonably believed to show: 1) A violation of a law, rule, or regulation; or 2) Gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety

Golden Rule of Terminations

Nobody should be surprised by a termination. If the employee is surprised by a termination, it is a failure of management. The ideal approach is to prevent a termination entirely Effective Hiring Effective Communication Effective Coaching Effective Management

Impermissible grounds -retaliation

Public Policy Exception to Employment at Will (cont.) Four kinds of the public policy exceptions are recognized; termination for: 1) refusing to commit an illegal act, 2) exercising a legal right, 3) performing a public duty, or 4) reporting illegal activity (whistleblowing) Rule: Employers must not terminate employees for refusing to commit an illegal act, exercising a legal right, performing an important public duty, or reporting illegal activities of employers and their agents

Termination problems

Terminations often go poorly Anxiety Lack of Preparation Ingrained social norms Botched terminations put an organization at risk for: Low employee morale Unproductive employees High turnover Toxic work environment leading to other legal claims Negative PR Lawsuits

Considerations When Discharging an Employee

What is the employee's length of service? What is the employee's previous service record? Did employee receive warning and lesser penalties, i.e., progressive discipline? Did employer use every means possible to avoid the discharge? Are there any evidences of prejudice or bias toward employee? Severance Package?

Informing the Employee

conducting a discharge meeting: come to the point within the first two or three minutes, and list in a logical order all reasons for the termination -be straightforward and firm, tactful, remain resolute in your decision -make the discussion private, businesslike, and fairly brief -don't mix the good with the bad -avoid making accusations against the employee and injecting personal feelings into the discussion -avoid bringing up any personality differences between you and the employee