Human Resource & Payroll Services And Solutions - Houston, Dallas, Austin - Texas www.hrp.net. Chances are you don't fire people often. If this is true, you might be a little rusty on the best way to handle the situation to make it run as smoothly as possible. Many books have been dedicated to this topic, but here are a few basic reminders to make the best of the situation.

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Phone: 281.880.6525
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Anticipating a Termination? Avoid the
Legal Hazards

2. The principal cause for terminated employees to seek legal redress for
what they regard as being treated unfairly is being fired when they didn't
see it coming. It happens more often than you might think. "Imagine if
your spouse after 10 years and no complaints suddenly tells you, 'I'm
done, this relationship isn't working for me anymore'" says Sheryl Jaffee
Halpern, a principal in the Labor and Employment Group of the Much
Shelist law firm in Chicago. An employee in the equivalent situation would
likely be bewildered, hurt -- and angry.
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» Barbara Richman, a senior consultant with HR Mpact in Memphis, refers
to terminations as "the capital punishment of the workplace." Making a
termination decision impulsively when emotions are running high, can
lead to disaster. Being deliberate, objective and thoughtful is the name of
the game, Richman says. Sometimes this is easier said than done when
you are really fed up.

3. Protected Class
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» Employees who fall under the anti-discrimination "protected class"
criteria pose the greatest legal risk in a poorly handled termination. In
addition to the most familiar ones -- age over 40, gender, race, religion,
national origin, and disability status -- also include familial and veteran
status, as well as genetics. (If you somehow knew an employee had a
genetic predisposition to a serious disease, and the employee knew you
had the information, this could provide the basis for a discrimination
charge.)
Angry terminated exempt employees who don't fall into any of the protected
class criteria (or even if they do) might assert a claim stating he or she hadn't
been paid for overtime worked, or given adequate break time.
Terminated employees don't always file for unemployment benefits if they
anticipate being able to find a new job promptly. But those who leave
believing they have been wronged are much more inclined to file for benefits,
Halpern suggests. (Of course a dismissed employee may or may not be
eligible for benefits, depending on the reasons for termination.)
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4. This could be particularly problematic if the individual has been treated as
an independent contractor but should have been classified as an
employee. Telling such a person his or her services will no longer be
needed may feel like being fired from a "job," especially if it has been a
long-term arrangement.
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» An unemployment benefit
application in this situation would
set off alarm bells in your state's
employment division since no
payroll taxes would be associated
with the individual, bringing on a
review not only of the individual's
case but possibly an entire payroll
audit.

5. Appearance of Retaliation
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Also, exercise extreme caution if a termination could be viewed as retaliation
for a legitimate activity, such as participating in an investigation, or voicing a
complaint about an unlawful employment practice. Retaliatory discrimination
cases are now the most common claims filed with the Equal Employment
Opportunity Commission (EEOC).
Avoiding all of these problems involves both steps taken prior to a
termination, and how the termination itself is handled -- assuming it is indeed
justified.
The first place to start, after checking your own employee handbook to
ensure your contemplated actions are consistent with your own stated
policies, is with a review of the employee's performance records. Obvious as
this sounds, the "didn't-see-it-coming scenario" noted by Halpern occurs
when an underperforming employee whose assessments and other records
have given no indication of a problem, is fired. This may be the consequence
of a direct supervisor being friends with the employee, or it could be the
supervisor has simply tolerated poor performance due to being conflict-
averse.
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6. Opportunity to Fix the Problem
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Unless the termination decision is based on an extreme disciplinary
infraction (e.g. injuring another employee), giving the employee an
opportunity to address the issue at hand is critical. The employee should
receive notification both spoken and in writing, about what needs to
change, and be given feedback during a trial period.
If the performance issue cannot be resolved, or if the basis for termination is
a disciplinary matter, determine whether other employees under similar
circumstances have been terminated, or suffered lesser consequences.
If all signs indicate termination is appropriate, beyond handling all the
administrative requirements of the process, treating the employee with
respect is critical, no matter how disappointed or angry you may be. Among
other things, this means keeping the decision as confidential as possible in
advance, and communicating the decision unequivocally yet with compassion
at a face-to-face meeting in a private setting. Imagine how you might feel if
you were on the other side of the desk.
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7. None of this guarantees you will not still face a legal challenge, but the risk
will be reduced. Do not hesitate to consult with an employment attorney if
you have any misgivings about your situation.
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