As a business owner, your job involves managing your employees. This can be fun, such as when you get to hire these awesome employees and bring them into your business. It can also be tough. Sometimes these employees just don’t work out as well as you had hoped. Sadly, this can lead to a tough decision– to fire or not to fire.
Here are some factors to keep in mind when preparing to fire an employee.
It might not have crossed your mind that when you fire someone can impact how smoothly (or bumpy) the process goes. Often, it works best to fire an employee at the end of the day. With the possibility of less employees being present, the employee won’t have to deal with awkward confrontation.
There is also a debate about what day of the week is best. Friday is usually regarded as the day NOT to fire someone. Why? Many offices, such as unemployment, are closed for the weekend, so the newly fired employees have to wait a few days to start getting things sorted out. Another reason to stay away from Friday is that it can make it look like you worked this employee hard all week, just to fire them at the end.
Where & How
Where and how you will fire this employee can make a huge difference, especially when it comes to safety. When picking the physical location, it’s best to pick somewhere where you can be close to the exit, such as a conference room. Making sure you’re near the exit allows for a quick exit if the employee were to retaliate (trust us… this stuff really does happen). It’s also important to keep in mind how the employee got to work. You don’t want to fire someone who gets rides to work and leave them stuck with walking.
Other Rules to Take Into Account
The government also sets some rules regarding firing that can get you in big trouble if you don’t comply.
Employment at Will
Unless you operate in Montana, your business has the option to implement employment at will policies and procedures. What does this mean? Well, employment at will, in its most basic sense, allows for a business or the employee to terminate the employment at any time, for any reason, or even for no reason at all.
In order to make sure you’re in compliance, make sure all contracts, whether implied or not, and other employee documents and agreements, such as a company handbook, don’t contradict the employment at will doctrines in your state. (Shameless Plug: If you need someone to make sure you’re in compliance, our HR team can help. Just ask!)
Legal vs. Illegal
Do you know what could be considered illegal when it comes to firing a bad apple? A lot of illegal firing methods conflict with discrimination issues. Policies such as Affirmative Action and the Americans with Disabilities Act make it illegal to fire certain employees without having a legitimate reason, or based on protected classes such as race, age, disability, etc.
If you are going to fire an employee, you must make sure you are in compliance with the rules of these acts. Otherwise, you might find yourself in more trouble than the employee was giving you.
Proof of Problem
When something goes wrong and insurance needs to step in, it is important to photograph and document everything. A bad employee is no exception. If you start to notice an employee acting out, it might be a good idea to start documenting right away. If the problem escalates to the point where the employee needs to be fired, it will be helpful to have solid proof of where the employee went wrong, rather than relying on “he said she said.” Although employment at will policies allow for an employer to terminate an employment without reason, having solid documentation as a backup can help prevent angry ex-employees from filing those pesky lawsuits.
Just because you are getting rid of the problem child employee doesn’t mean you get to sweep everything under the rug. When you hired this employee, it’s possible they signed up for certain benefits, and some of these benefits don’t disappear with termination.
Health insurance is one of those. Under COBRA, employers with 20 or more employees must offer temporary continuation of health care at a group rate to terminated employees. There are some exceptions under COBRA, but it is a good practice to stay up to date so this snake (come on, we had to) can’t come back and bite you for not being in compliance.
Of course we can’t forget about unemployment. If you fire someone, you have a legal duty to fill them in on any possible eligibility they may have to receive unemployment insurance. Fired employees are also required to remain eligible to receive pension and 401(k) plans.
Show Me the Money
If you’re firing an employee, it’s likely they will still have some compensation owed to them. It goes without saying that you still have to fork over this payment, but what could get you in trouble is when you pay them. Federal law doesn’t require former employers to immediately hand over the check, but some states have laws that disagree and require immediate payment. Some of these state laws may even require the employer include other compensation in the paycheck, such as unused vacation pay.
The moral of the story …
It is important to remember the majority of issues impacting the firing of employees varies by state. Contacting your state’s labor department can help you be sure you have the latest information to keep you out of trouble when firing a bad employee. If all this seems scary and you’re not sure where to look, let us know. We know how important it is to have someone monitoring all these rules, and our HR team is here to help you do just that.