Involuntary termination

Involuntary Terminations

Learning Objectives:At the close of this session you will be able to:

Identify the two types of terminations.Identify the difference between a layoff and a discharge.Cite the primary laws that affect involuntary terminations.Identify the company’s termination procedure and all other termination documentation.Cite reasons for the importance of documentation.Identify guidelines for a termination meeting.

Separation of Employment

Separation of employment refers broadly to the process of managing the termination of employment, whether involuntary (such as discharge, layoff, company closure, disability or death) or voluntary (such as resignation, job abandonment* or retirement).

Separating an employee is never easy, but sometimes for the sake of the company and the jobs of others , it must be done. The purpose of this presentation is to ensure that employee separations are handled in a professional manner with minimal disruption and liability.

*Job abandonment prompts the employer to terminate an employee (involuntary), however, it is the employee’s decision to no longer show up for work (voluntary). It can be either one depending on the company’s code.

Characteristics of a layoff:• It can be temporary (lack of work/reduction of force) or

permanent (idle due to decrease in industry)• In most cases, the employee is welcome to return

Characteristics of a discharge:• It is usually permanent due to the reasons for discharge,

which include: unsatisfactory elements (performance, attendance, etc.) or violations (policy, ethics, code of conduct, etc.)

• If the employee returns is dependent upon the severity of the reason of discharge, any may require managerial approval

EXIT

I Left Because They Made Me…

Additionally…

In the instance of a layoff, it is the supervisor’s task to complete the documentation in a timely manner with as much detail as possible and communicate the determination to the employee.

There are numerous reasons for an organization to handle terminations in an ethical, rational and consistent fashion. Termination affects recruiting, retention, employee relations, morale and productivity. In addition to the business reasons for effective termination practices, numerous legal risks arise whenever an employer fires an employee.

Primary Laws That Pertain to Involuntary Terminations

Title VII prohibits employers from terminating employment based on race, color, religion, gender and national origin.

Pregnancy Discrimination Act (PDA), an amendment to Title VII, prohibits termination of employment based or pregnancy and childbirth.

Americans with Disabilities Act (ADA) prohibits employers from terminating employment based on disability.

Age Discrimination in Employment Act (ADEA) prohibits employers from terminating employment based on age 40 and over.

Primary Laws That Pertain to Involuntary Terminations

Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from terminating employment based on military service.

Family and Medical Leave Act (PDA), an amendment to Title VII, prohibits termination of employment based on the serious medical condition of employee, spouse, child, parent or for birth or adoption of child.

Note: The employment-at-will doctrine (not law) pertains to the employer’s right to terminate the employment relationship at any time, for any reason, with or without notice, as long as the employer is not violating any oral or written contracts, public policy, covenant of good faith and fair dealing.

(cont’d)

This. Just. In.

An separation should (almost) never come as a surprise.

Ideally, a termination should be the final input to a conversation that has been ongoing. The employee has been clearly told about the problems and what needs to change, warned that the progress is not what it needs to be, and explicitly told that his or her job is in jeopardy if specific changes do not occur.

However, there are some offenses so egregious that they warrant firing on the spot, like, say, punching someone in the face (or any other type of bodily harm).

General Policy on Involuntary Terminations

Most companies have a progressive disciplinary policy, which may include:• Coaching and counseling• Verbal Warning• Written Warning• Final Written Warning• Termination

Importance of Documentation

• Adherence to company policies. Documentation can indicate whether an employee knew that the policy existed and whether a manager warned the employee about violating the policy. It can also show whether there were any mitigating circumstances and whether the manager followed company policies and procedures when disciplining the employee.

• A valid business purpose. Documentation will provide evidence that a valid business reason exists for termination and the termination does not violate any law, policy or specific employment agreement.

• Evenhanded treatment of all employees. Documentation can provide evidence that employees who have engaged in similar conduct were subject to similar discipline, thus supporting the position that an employee’s protected status (race, religion, gender, national origin, disability, pregnancy, age, etc.) had nothing to do with the termination decision.

Importance of Documentation (cont’d

)• Accommodation. If accommodation is an issue, documentation can provide evidence that

an employer made an offer or reasonable accommodation, taking into account a person’s religion or disability.

• Investigation. It is important to conduct a thorough investigation prior to any termination decision. The use of documentation can provide evidence that such an investigation was conducted and employees were given the opportunity to relate their side of the story.

• Creating a record. An employee’s overall personnel record should support the termination decision. Thorough documentation can provide such evidence and substantiate the fact that it was communicated to an employee that there was an issue, specific guidance on how to improve, time to improve and that failure to improve would result in termination of employment.

Guidelines for the Termination Meeting

Prior to the meeting, you should:

• Have notes for what to communicate. What you say can be held against. State that the termination is for cause and use supporting documentation. Keep it short and sweet.

• Time the meeting carefully. A common practice is to hold the meeting at the end of the work day and request to see the employee an hour before the end of their shift.

• Have a location to hold the meeting. A room with a door for privacy. Managers offices are not a good choice.

• Be sure that HR is in attendance. An HR representative can not only handle the final documentation, they can also assist by allowing the employee to shift his or her focus to logistics rather than having just been terminated.

Guidelines for the Termination Meeting

During the termination meeting:

• Keep the conversation relatively short. Avoid small talk. The decision is final, and while you hope the employee understands this, the time for back and forth has passed. State the decision and move on to logistics (final paycheck, COBRA, etc.).

• Be honest and direct. Easing into the news or sugarcoating the reason will not soften the blow. Clearly state the reason for termination, but avoid personal references and/or accusations.

• Be prepared for the employee’s reaction. It may go well and it may not…

• Provide a copy of the separation notice. This is a legality.• Escort the employee to the exit/gate if security is not available

(cont’d)

And On THAT Note…

Always remember, whether it is a coaching, warning or termination situation, to treat all workers with respect and civility.

If an employee is having difficulties, turn it into a learning experience. If that does not work, release that employee so that they, and yourself, can find a better fit. Don’t yell at, belittle, threaten or degrade anyone because of your displeasure.

Your team is your family. We must build each other up, not tear each other down.