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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Part II of II: Legal Considerations When Terminating An Employee

Stick figure pink slip (00092262).JPGThis is part II of my post from Friday.  The following procedures provide a basic template that you can tweak to fit your company.

Step One—Verbal Warning.  Have the employee’s supervisor discuss with the employee the problem that has occurred and the corrective measures that need to be taken. Have another manager sit in on the meeting. Make notes to the file documenting the meeting and problems and have both managers date and sign the entry.

Step Two—Written Warning. Have the employee’s supervisor draft a written warning that states the nature of the violation and the plan for correcting the behavior.  Have the supervisor discuss with the employee the problem that has occurred and the corrective measures that need to be taken. An additional step that might be appropriate is putting the employee on a probationary period. Have another manager sit in on the meeting. Make additional notes to the file documenting the meeting and problems and have both managers date and sign the entry.  Also have the employee date and sign the written warning.

Step Three—Suspension. The employee will be suspended for several working days without pay.  If an investigation is necessary, the supervisor may have the employee leave the office until a final decision is reached and if the investigation absolves the employee of any wrongdoing, he or she will need to be paid in full for the time lost during suspension.

Step Four—Termination.  An employee being discharged for multiple minor violations should only be terminated once the employer has given the employee the warnings above and has properly documented the file in order to successfully defend any post-employment claims of wrongful discharge.

Examples of grounds for termination after following the steps above vary by state but may include:

  • Chronic absenteeism or tardiness in violation of the employer’s policy
  • Multiple unapproved absences
  • Inefficiency, incapability, chronic mistakes or misjudgments

However, certain misconduct may require immediate termination without prior discipline.  This decision should be made by management and what constitutes “misconduct” varies from state to state. The following examples may constitute misconduct that allows for immediate termination*:

  • Testing positive for a nonprescribed controlled substance
  • An intentional false or misleading statement of material nature about past criminal convictions listed in a job application
  • Any willful and deliberate violation of a state regulation by an employee that would cause the employer to be sanctioned or to have its license or certificate suspended
  • Gross negligence or misconduct by an employee that results in substantial monetary loss for the employer
  • Sexually harassing another employee

The internet landscape can complicate the disciplinary process if you have not clearly articulated to your employees what conduct on social media websites is unacceptable and violates your company’s policy.  New issues in the employment context continue to arise as social media websites’ popularity continues to grow.  Does your current policy prohibit employees from making disparaging comments about your company or other employees, management, etc. on facebook or employees’ personal blogs? Behavior and conduct that would not be tolerated if written and published in a traditional forum also should not be tolerated on the internet. Your policy should include what conduct is prohibited (along with a list of specific examples that is not exhaustive) and the disciplinary procedures that will be followed for violations of that policy.

Finally, if you have a difficult employee whom you have reason to believe may claim wrongful termination or discrimination, contact your attorney before taking any action.  He or she will be able to provide additional guidance to you on a case-by-case basis.


*Check your state's employment laws to see how misconduct is defined and what courts have upheld as constituting misconduct in the employment context.