How to Deal With Employee Termination

In a recent article, I addressed steps to handle the low-hanging fruit of voluntary resignations. In this article, I'm going to discuss what you need to do when you have to terminate an employee. It is important to note that every state is different and that you should check with an attorney before making policy or employee decisions.

What do I do if I want to let someone go?

Assuming of course that you want to terminate someone for a legally acceptable reason, you should have taken them through some sort of progressive discipline to try and correct their behavior before it gets to the point of termination.

Why progressive discipline? It is my practice; I should be able to do what I want.

For the most part that is correct, but it really boils doing to the amount of risk you are willing to have your business take on. In certain cases there may be more risk leaving a person in place than letting them go. Only you, and possibly your attorney, can make that decision.

From a human resources standpoint, it is best to have a procedure that you follow consistently that attempts to improve an employee's performance before things get to the point of termination. Unfortunately, what usually happens is that minor performance issues are overlooked until a breaking point is reached – followed by a reactive "paper trail" built to justify firing someone. In the end, nobody wins; the employee is not given specific direction on how to improve and your frustration levels rise until it is awful to come to work.

There are also significant costs that come from having to replace people, which are generally estimated at 150 to 250 percent of their wages. So why not at least try to rehabilitate a current employee?

One thing that is important to consider is, if your progressive discipline procedures are going to be written in the form of a policy or not. All progressive discipline should be consistent – this is important from a legal defensibility standpoint and from a morale standpoint. If you apply rules inconsistently, you run the risk of a court determining that your underlying reason for termination was based upon protected characteristics of an individual and not the issue at hand. You also create an environment in your office where your employees do not feel safe and your turnover rate will increase.

That being said, it can be dangerous to put a formal progressive discipline policy in writing as it runs the risk of violating the "at will" employment doctrine. By placing something in writing you put yourself in a box of having to follow every step for fear of skipping steps being interpreted as wrongful termination by a judge. It is better to have a system laid out but to keep that internal to allow yourself the flexibility to act in the best interest of the practice.

Adam McWethy, MA-HRIR, SPHR, is Human Resources Manager for Spear Education.