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Terminating an employee for poor performance…seems easy right?

On the surface, terminating an employee for poor performance seems simple. It’s nothing personal. The employee just isn’t getting it done and would be better off in another job. But even when a termination is 100% justifiable, managers must be extremely careful how they conduct themselves. Terminations, no matter how clear cut, can have legal ramifications.

Most businesses are protected to a certain extent by at-will laws, which allow the firing of employees for no reason. However, at-will employment does not keep an employee from filing a lawsuit for wrongful termination and, even if the courts rule in your favor, your business will be required to pay court costs. It’s best to take a few measures to protect yourself before firing an employee to avoid a costly legal process.

Here are 5 Tips to Termination:

1. Document, document, document! Detailed, consistent documentation can defeat many claims of defamation, discrimination and wrongful discharge. Great documentation shows a pattern of clear expectations on your part, and repeated failures on the employee’s part.
2. Make your Employee Handbook work for you and not against you. Make sure your employee handbook and policies are clear and concise. If you just downloaded one from the Internet, chances are it needs updating. Review the handbook annually and get a new acknowledgement from employees every year. Don’t have a handbook? Even small employers should consider having an employee handbook, it ensures your employees know their expectations, and understand workplace policies and procedures.
3. Make sure your termination process is fair and standardized. It should be delivered consistently no matter who the employee, in fair, non-emotional way. Don’t embellish the reasons for termination, you don’t want a defamation case on your hands!
4. Conduct a proper termination meeting. Unless the employee is volatile, do not terminate them via email, phone, or text. If possible conduct a proper termination meeting. Have witnesses, be brief and concise, and document!
5. Involve HR! If an employee is in a protected class, has a known medical condition or disability, has taken job protected medical leave, or if there is suspicion of any other legal issue (e.g. harassment, retaliation), be sure to consult with HR or an employment attorney before terminating.

Employers have a legal responsibility to protect their employees from a range of dangers and under occupational health and safety legislation, the onus is on employers to carry out due diligence by conducting workplace hazard assessments and implementing effective control measures to remedy any hazards that might have been identified as part of this process.

If you were on the witness stand and the government attorneys are asking you about your safety program, compliance and enforcement, could you answer the following with confidence?

• Are you familiar with your company’s safety program?
• Do you discipline employees for not following the rules of your safety program? How can you prove that to us?
• Do you conduct periodic safety audits to ensure employees are following your safety program and being safe? Why not?

Today we’re going to share 4 things that will help you be prepared, stay diligent, and protect your business before tragedy strikes…

Safety Program

This is more than a general safety statement in your employee handbook!  Create a separate safety handbook that emphasizes the hazards your employees encounter most often.  Make sure the policy is readable, understandable, and accessible to your employees.  Get your supervisors on board with fully embracing the policy and its enforcement.

Safety Training

Who does your safety training?  Are they qualified?  Do you give safety training both at point of hire and recurring?  Classroom training alone is not enough, demonstrations are key.  Effective training and education can be provided outside a formal classroom setting. Peer-to-peer training, on-the-job training, and worksite demonstrations can be effective in conveying safety concepts, ensuring understanding of hazards and their controls, and promoting good work practices.

Enforcement

The BEST Safety Program and the BEST Safety Training will fail without enforcement!  If you are not writing up your employees and supervisors for failing to follow the safety program and training, you cannot show that you take safety seriously.  Maintain a separate safety violations file.

Auditing

Do you have regularly scheduled auditing of your safety program?  If you do, your employees will always appear to be following your safety program, because they expect you, and you are actively observing!  Random, unannounced is the only way to go.  This is critical to having an effective workplace safety program.

Creating an effective workplace training program requires care and planning but will reward your organization and employees with a safe and productive workplace.

An employment application should not include any questions that will produce a response that would indicate an applicant’s protected class such as age, race, national origin, disability, etc. Such inquiries may be used as evidence of an employer’s intent to discriminate, unless the questions asked can be justified by some business purpose of the employer.

It’s important to note that Information needed to conduct background checks should be obtained on a separate form authorizing the employer to conduct the check.

Some common inquiries to avoid on your application are:

Birth dates: Making inquiries about an applicant’s birth date can give the perception that the employer is using age as a decision-making factor in the hiring process. If federal law or the employer’s state law requires a minimum age for employment for certain occupations, then the employer can ask applicants if they are at least the minimum age required for employment.

Graduation dates: Making inquiries of an applicant’s school graduation date can reveal an applicant’s age. To obtain information on whether an applicant holds a degree or a diploma, the employer can simply ask if the applicant has graduated and what degree was obtained.

Military discharge information: Questions that are relevant to work experience and training received are permissible. However, an employer should not ask an applicant the reason he or she was discharged from the military or request to see military discharge papers, except when directly related to the job or to determine veteran’s preference.

Race inquiries: An applicant’s race or color should not be asked on an employment application. Some employers may track their applicants’ race for affirmative action plans or compliance with the Uniform Guidelines on Employee Selection Procedures, but this should be done apart from an application. This information is not used in the selection process and is voluntary for the applicant.

Citizenship: Inquiries about an individual’s citizenship or county of birth are prohibited and can be perceived as discrimination on the basis the individual’s national origin.  An employer can inquire if an applicant is legally eligible to work in the United States and inform the applicant that proof of his or her eligibility to work in the United States must be provided if selected for hire.

Maiden name, Miss, Mrs. and Ms.: Many states prohibit marital status discrimination, making any questions related to that status possible evidence of discriminatory hiring practices.

Social Security number: Although asking applicants for their Social Security numbers is not unlawful, requesting this information from applicants is not recommended due to identity theft and privacy concerns. Employers do not need this information until it is time to run a background check or complete a W-4; therefore, including it on an application carries unnecessary risk.

Salary History: Some states prohibit an employer from requesting salary history information from candidates. These laws are designed to promote greater pay equality by forcing employers to develop salary offers based on job requirements and market pay levels.

How many hours are required to be paid for a full day?
Exempt employees are paid to do the job, not by the hour. Therefore, you cannot deduct money from their paycheck if the employee is late, takes a long lunch, go to a doctor’s appointment or what have you. If they work at all, they get paid.
If the employee comes in and works only 30 minutes of their day and then goes home, they still get paid full salary for that day.

When can we deduct?
If your employee has used up all of her vacation time and wants to take a day off, it’s possible for her to take the day off. You will not need to pay her for that day if the time off is for a non-illness related day off. It’s the equivalent of a vacation day, not a sick day.
Naturally, whether or not you allow this unpaid day off is up to you. If you grant the unpaid day (or days) off, remind your employee that they are not to do any work on those days off. Doing as much as 15 minutes work can trigger the rule.

Can we require them to make up their time?
You can require the exempt employee to make up missed time, even for partial day absences. However, you cannot reduce the employee’s salary if he/she fails to make up the hours.

Can they bank hours to use for these situations?
No, since an exempt employee is paid full salary regardless of the number of hours worked in a week, they cannot bank hours.
If you are experiencing issues with an exempt employee related to the questions above, there are some steps you could take to try and rectify the issues, including disciplinary action.

Both state and federal labor law posters are required for businesses. If a business has one or more employees, it is required by the law to post federal, state and OSHA mandatory posters. More specifically, the following six postings must appear in each workplace location: federal minimum wage, Employee Polygraph Protection, OSHA, FMLA, USERRA, and EEO. You may purchase them individually or together on an all-in-one labor law poster.

Where should Posters Be Placed?
Labor law posters should be displayed somewhere apparent to all employees on a daily basis, such as a break room or main lobby. If you have multiple locations, then each workplace should display its own posters.

When Are Posters Not Needed?
Although it is recommended, the following types of businesses do not need to post labor law posters:

• Sole Proprietor without employees
• Businesses with only contract employees
• Businesses with an all-volunteer work force
• Family owned business where ALL employees are related

Do my posters need to be multilingual?
If you have a business that is located in Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York or Texas you will have to post both Spanish and English versions of the posters. If your business is not in one of these states, then it is not mandatory for you to display the bilingual posters; however, it is a smart thing to do if you employee Spanish-speaking workers.

Do I have to change my posters every year?
The frequency of Labor Laws varies by state. Employers must change posters when the State, Federal or OSHA agencies make legislative or regulatory changes. The most expected update to occur is state minimum wage rates.

What is the penalty for failing to display Labor Law posters?
Federal and State fines are imposed by various agencies. These fines may vary.

• Federal FMLA $100 per offense.
• For failing to post the Federal OSHA Poster – A civil penalty of up to $7,000 may occur.

Unsure if you are compliant? Need help finding the forms, posters, or guidance? Contact your HR Advisor today!