There is always a danger when terminating an employee, especially if he/she is on medical leave, filed a workers’ compensation claim or is pregnant. Another area of concern is that an employee might file a complaint that the employer violated their rights under FMLA, ADA and last, but not least, discrimination and harassment. So how does an employer protect themselves from this when they want to terminate an employee? There is no guaranteed process that can fully protect an employer from everything, but there are steps that can be taken to give you the best possible outcome.
- Conducting regular evaluations will provide the necessary feedback to the employee on their overall performance and productivity. Be honest and accurate in these evaluations. One of the biggest mistakes employers make is giving favorable evaluations to a problem employee. An employee who is being terminated due to poor performance but always received a favorable review may believe they are being terminated for other reasons, like discrimination or retaliation for filing a workers’ compensation claim.
- Making sure your supervisors are trained properly on giving evaluations and disciplinary actions will also help with employees understanding where their strengths and weakness are. Sometimes supervisors think they are reducing the risk of being sued by giving a favorable review or not doing a written warning because the violation “is not that bad,” when actually the opposite is true, especially when it comes to successful unemployment claim denials.
Investigations (if necessary)
- Before terminating an employee for something illegal, unethical, or extremely severe, you need to figure out if the employee did what he’s being accused of. To do that, you need to investigate the allegation. Be sure that whoever is doing the investigation is impartial. Interview/collect witness information and any evidence that either supports or discredits the allegations in order to make a sound decision on what to do next.
Follow Your Disciplinary Policy
- If you don’t have a disciplinary policy in place, get one. By having one, you create a paper trail of evidence, give employees fair warning and a chance to improve, and ensure that discipline is appropriate and consistent for all employees. Just make sure you discipline all employees alike. Disciplining some and not others, or not in the same manner will make you vulnerable to discrimination claims.
Avoid Retaliation by Keeping Records
- The most common type of retaliation claims are around harassment or discrimination, but you could also have claims stating the employer violated FMLA or ADA. It’s imperative that the employer keeps record of any and all claims made. Be sure a thorough investigation was done that shows the employer did everything they could to resolve the situation. Also, training your supervisors on the federal laws that protect employees will reduce the chances of violations occurring.
Call your Sheakley HR Representative
- Before making your final decision, call your Sheakley HR Representative! We are here to help and give you an unbiased point of view, and also help keep you, the employer, compliant. We can help every step of the way!