Separating from an employee can be an emotionally and legally challenging decision. That is why it is always stressed to follow commonsense practices of discipline and paperwork leading up to a dismissal.
There is plenty of information out there about steps to follow before a dismissal.
Jeffrey Polsky of Fox Rothschild has a great list of “24 Questions to Ask Before Terminating an Employee.” Some of the highlights are:
- Does the employee have a contract of employment? If so, what does it say about grounds for termination?
- Has the employee acknowledged in writing that employment is terminable at will?
- Does the employer have any policies requiring it to take specific steps before termination? If so, has it taken those steps?
Employers may also be faced with “second guessing” on discharge cases. Justifiable discharges can be supported by achieving the following leading up to a discharge:
- Employee knew what was expected: It needs to be documented that clear and proper instructions were given on job procedures and tasks. Make sure the employee was aware of applicable written rules and all polices were previously reviewed. It should also be made completely clear that violated rules or policies have a rational relationship to the employer’s interest.
- Counseling and warnings were given: Did the employer make efforts to help employee correct problem? Were all standards of conduct clearly defined. Make sure they always are.
- Employee knew the consequences: It should have been made completely clear and warnings should have been issued and/or other disciplinary action taken prior to discharge. There should have been no reason to believe that violations were condoned. (For example, rules were applied fairly and consistently to all employees.) And, the final incident clearly violated a previously defined rule or policy.
- Employee was treated fairly: Finally, the rules have to have been applied consistently. All mitigating circumstances (if any) have to have been considered. The employee should be given the opportunity to explain his/her side.
And following all of the above steps, including Polsky’s, does not guarantee an unemployment claim will not be awarded to the terminate employee. If an employer plans to challenge a claim, it needs to be ready for that process as well.
