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By Erin E. Rome
April 17, 2017
For employers of all sizes, having to fire an employee is an unfortunate, but often inevitable, part of doing business. Legally, this can be sticky territory, and if the employee termination is not handled properly, the employer increases the chances of a lawsuit by the terminated employee. While there is no way to entirely prevent a lawsuit after firing an employee, there are steps employers can take in order to help protect themselves:
1. Review any written employment agreements, personnel policies and employee handbooks: Make sure you follow the procedures outlined in these documents. If not, you could be exposing yourself to a potential wrongful discharge or discrimination claim.
2. Look over the employee’s personnel file and performance reviews: If they demonstrate a history of problems, this can be used as support for the decision to terminate the employee. If the employee’s personnel file fails to support (or it contradicts) the termination decision, you’ll want to tread carefully.
3. Consider your past personnel decisions: How have you handled past situations with similarly-situated employees? Have you been consistent?
4. Think through access to data and property: Does the employee have a company laptop or cell phone? Do they have remote access to your computer system? Think through how to recover company property and when/how to cut off access to the network.
5. Come up with a plan for communicating the decision: Decide when and where to meet with the employee – minimizing disruption and providing privacy are important. Plan out who will participate in the discussion (two employer representatives, if possible) and think of what to say (and just as importantly, what not to say).
6. Provide the employee with information on post-employment rights and benefits: Will the employee be eligible for COBRA? What about benefits under a retirement or profit-sharing plan and how will those be transferred?
7. Understand that each potential termination is unique and requires careful, individualized planning: There is no one-size-fits-all approach to handling a termination.
While careful planning won’t always protect you from a lawsuit, more often than not it will help avoid unnecessary and costly missteps. If you have questions or concerns, you should get legal advice before terminating the employee, if possible, because that approach can be far more economical than waiting until after the legal issues arise.
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