Proper Steps when Discharging an Employee, by Scott L. Lowth
Some Do's and Don'ts
Every nonprofit leader will eventually be faced with having to discharge an employee. This article covers discharges for cause or misconduct, not voluntary resignations.
Ideally, your organization has an excellent hiring process, ensuring that all final candidates are properly vetted before an offer is extended. This careful process mitigates the possibility that you may 'front-end load' a problem employee onto your team. When hiring occurs out of rapid-fire expediency, it is a recipe for challenges later on.
Even with proper hiring practices, a challenging employee may slip by and be hired. Employees bring all sorts of challenges to their employment. For example, personal problems seep into the workplace, performance is sub-par, or they may engage in various forms of misconduct (i.e., fighting with others, falsifying documents, etc.) that substantially violate your personnel policies.
Except in very egregious situations (i.e., physical fighting with co-workers or other serious misconduct), it is important to ensure that you have followed your organization's progressive disciplinary policy. In most cases, this does not require a lockstep process of stopping on each rung of the process, but the employee should be apprised of the concerns and clear expectations, in writing, at least once before being discharged. A written warning, Performance Improvement Plan (PIP) or Final Written Warning, depending upon the seriousness of the situation, creates a proper springboard for next steps.
It is critically important to ensure that you do not terminate an employee in the immediate aftermath of the employee requesting an ADA reasonable accommodation or similar protected activity. The reasonable accommodation should provide that employee with an equal footing to complete the core functions of their job. In some instances, even with accommodation, employees fall short of reasonable expectations or performance standards and discipline becomes both necessary and appropriate.
One of the biggest challenges in reaching the decision to terminate is to find out that the 'facts,' as described by the supervisor, are not verified as facts. Never, ever base a termination decision on opinions that cannot be substantiated with concrete evidence, corroborated testimony during an internal investigation, or similar levels of reasonable certainty.
The Preponderance Standard is required (at least 51% certainty that something is a fact) when making termination decisions. Higher levels of certainty are preferred.
Once HR or executive leadership has confirmed that all of the steps have been properly taken, preparation of the documentation can proceed. A standardized disciplinary or discharge document is recommended. It should include the employee's name and title, the date of discharge, and specific information about what the violations of policy were, in addition to the decision to discharge.
This Notice of Discharge may be reviewed by an Administrative Law Judge when/if the employee applies for unemployment insurance benefits. It can also become relevant if/when an employee files a wrongful termination suit so accuracy, confirmed facts and clarity are important.
Once the Notice of Discharge accurately reflects what happened and what the decision is, and the organization can ensure that the employee was already on notice of concerns about performance or behavior through a previous form of discipline, you are ready to take next steps.
Prior to scheduling the termination meeting with the employee, the final paycheck, inclusive of any accrued and unused vacation time or PTO must be prepared and ready (California requirement) for presentation to the employee on their final date worked.
Copies of the Notice of Discharge, information about how to apply for Unemployment Insurance benefits and information about C.O.B.R.A. portable insurance coverage at the employee's own expense should be prepared for delivery to the employee, along with the fully executed Notice of Discharge.
It is recommended that you notify the supervisor, union reps or others who may need to be present prior to notifying the soon-to-be-discharged employee of the termination meeting. This ensures a smooth process where all relevant individuals are present. NEVER discharge an employee solo. Always be sure to have at least one other management person present, preferably the employee's supervisor or department head.
Schedule the employee to meet in a private space where confidentiality can be maintained. In my consulting practice, I have observed supervisors or others in leadership be angry, rude or unprofessional during discharge meetings. Not only is this conduct unbecoming, but it may exacerbate an already tense and difficult situation, leading to unnecessary liability. Remain calm and professional and matter-of-fact, providing straight-forward information about what happened and why it has led to the decision to discharge. Be prepared with all related documents up-front so that the process can be as short and smooth as possible.
Once the employee has been discharged, they will need to turn in all keys, office-owned equipment, passwords, etc. Just prior to meeting with the employee, direct I/T to shut off the employee's access to email and other systems to avoid sabotage of data or inappropriate communication by the employee with other staff.
Supervise their pack-up with dignity, then escort them from the building. Once gone, notify the staff that Person X is no longer with the organization. Do not elaborate. It is a confidential HR matter and other employees should not be privy to the details. They can simply be informed that the person is no longer employed.
Coordinate any transfer of work to appropriate individuals. Close the HR file, with copies of all documentation.
Here are some of the "don'ts" that I have observed over the years, making discharge situations more difficult than necessary:
* Thrusting documents at the discharging employee in an aggressive manner.
* Making demeaning or personalized comments about the employee that are not related to the behavior or performance.
* Going to the trouble of being physically present in the office where the employee works, only to end up sitting in an adjacent office rather than being in-person as intended.
* Not having copies or the final paycheck or other materials ready in advance.
* Making promises that can't and won't be kept, such as "we'll do anything we can to help you find a job."
* Making disparaging remarks about discharged employee to other staff and/or to other stakeholders.
* Showing up to the discharge meeting, believing facts that were not verified, only to find out that the facts were erroneous and that the decision to terminate is no longer appropriate. This is not only embarrassing, but it has the potential to become problematic.
* Forgetting to ask I/T to shut off access to systems, resulting in the terminated employee deleting data or sending out toxic emails to staff.
* Giving too much information post-discharge to potential employers. Instead, the policy (for all employees) should be that you simply verify employment, including title, dates employed.
* Watching and allowing poor behavior and/or performance to continue uninterrupted for long periods of time without taking appropriate action to address it. In these instances, my interest shifts to the SUPERVISOR. What did they know? When did they know it? Why did they not act on it? It may be necessary to engage in disciplinary action with the supervisor in some instances also.
The bottom line is -- "Hire slowly, fire quickly." This intends to remind us to vet potential employees carefully up-front, taking our time to get it right, and to address problem behavior or performance immediately through appropriate disciplinary steps.
