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Things to Consider Prior to Termination

Before firing an employee, always contact Human Resources.  To ensure you're not making a rash decision, ask the following questions:

1. Do you have an established policy related to misconduct? Such a policy, when understood and followed appropriately, helps make sure employees are treated consistently.
2. Have you informed the employee that the stated infraction was against established policy, or that his poor performance is unacceptable?  If an employee is unaware that his performance is unacceptable, he is incapable of fixing the problematic behavior.
3. Have you stated the consequences for a lack of immediate and sustained improvement?  Let the employee know the seriousness of the performance problem by discussing the “next steps.”
4. Is the proposed action consistent with past practice?  Again, make sure you are consistently following company policy to avoid a future discrimination claim.
5. Have you consulted HR or other advisers about the circumstances and related actions?  One major role of HR is to help protect the company from employment lawsuits.
6. Does the employee have a potential case for discrimination?  Consider if the employee:
   •Is over age 40 (Age Discrimination in Employment Act);
   •Is of a particular sex, race, religion, color, or national origin that may be deemed a minority (Civil Rights Act, Title VII);
   •Is disabled and qualified for the job (Americans with Disabilities Act);
   •Is pregnant, or recently gave birth, or having related medical conditions (Pregnancy Discrimination Act); or
   •Has complained about being harassed by anyone at work (Civil Rights Act Title VII).
7. Retaliation claims are up by more than 50 percent since 2006, so employers have to be more careful than ever with their actions. Can the employee claim the termination was in retaliation for making a claim of discrimination based on age, sex, religion, color, national origin, or for complaining about, or providing notice about something?  This may include:
   •Workplace safety;
   •Pay discrepancies;
   •A medical condition;
   •Filing a workers’ compensation claim; or
   •Perceived illegal activities by the company.
8. Document, document, document!

Taking time to thoughtfully consider your actions may just save you from an employment lawsuit.  For more information, please contact your ESG Human Resources Consultant. 

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