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Firing worker needn’t be risky business

Freelance

By Kaye Patchett

kpatchett@tucsoncitizen.com

“You’re fired!”

Donald Trump may say it with impunity, but in the real world, bosses need to think before they utter those words.

A bad worker can be costly in terms of lost productivity and workplace morale, but terminating an employee should not be done in haste, said Rob DeMarco, supervisor of employer services at the Arizona Department of Economic Security. If you do decide to let someone go, have a good reason and make sure that everything is documented, he said, to protect your company against possible legal repercussions.

“You don’t have to give a reason for the termination,” said employment attorney Andrea E. Watters of Watters Law Office, 2807 E. Broadway, but whether or not you share your reasons with the employee, you must be able to prove that you acted within the law if he or she later files a grievance or complaint against your company.

Because Arizona is an “at will” state, employers have the right to dismiss an employee at any time and for any reason, Watters said. Many clients discover that they have no legal case against the company that fired them.

“We have to have a violation of the law,” Watters said. “Being treated unfairly does not equate to a lawsuit.”

For example, she said, “I could work for you 15 years and make a profit for you. Today, you decide you don’t like me anymore. You have the right to fire me.”

If an employee is persistently late, abrasive with co-workers and abrupt to your customers, your simplest course may be to tell him, “Sorry, it’s just not working out.”

However, unless you can prove, with documentation, that the employee received due warning that his or her work or conduct was unsatisfactory, a claim for unemployment may be granted, possibly leading to an increase in your unemployment tax rate.

“If an employee’s performance is not what it should be, write a performance plan to show where they are missing the mark,” said Jane Lance, regional vice president of Right Management Consultants, 5055 E. Broadway. Specify what needs to be done and how to improve, she said. Set a deadline and have the employee sign the document.

Not all employees cooperate.

“It depends on the individual whether they take it seriously,” said Leslie Bray, owner of Dale’s Doors ‘n’ Windows, 321 S. Kino Parkway. Some people refuse to sign a written warning, she said. Nonetheless, a paper trail documenting both written and verbal warnings is a vital precursor to a termination, she said.

“It’s not done because you want to fire them,” Bray said. “I want them to shape up … but it becomes ammo when you do want to fire them.”

If you have to let somebody go, be factual, respectful and brief, said Lance.

“Be very direct. We recommend a manager communicate the termination in less than five minutes.”

Refer to the performance plan, if there was one, and point out where the employee’s performance has failed to improve.

“Say, ‘Today is your last day.’ Ask them to return company belongings, keys or cell phone,” Lance said.

The person may seem shocked, angry or defensive.

“Look out for an emotional reaction. If they are in a good state, let them go back to the work area” to say goodbye to colleagues. If you suspect a terminated employee may steal something or sabotage computers, remove her access code and escort her when she clears her work space. If you anticipate a violent reaction, it may be necessary to arrange to have security on site.

Avoid late Friday terminations, Lance cautioned. “Everyone has left … you’ve sent them into the weekend without support. Depending on their emotional state, it could put someone in a nose-dive.”

If terminated on a Monday, she said, “They can start Googling, get the papers and look for a job.”

Any outstanding wages must be paid promptly after a termination.

“Arizona law states that you must pay all wages that are owed within 72 hours,” Watters said, including “any accrued vacation time, earned bonuses and commissions.”

If a severance package is offered, the employer may require the employee to sign a release, relinquishing any claims or legal action. However, said Watters, “You can’t say you won’t give them the last week’s paycheck if they don’t sign a release.”

If you provide a written notice of termination, keep it brief and factual. Don’t write a letter detailing your reasons, Watters said.

“The employee-employer relationship is an emotional one, and a termination can be an emotionally charged situation,” she said. “You don’t want to be writing letters at such a moment.”

Hastily written words may lead to expensive consequences, she noted.

“You might create a lawsuit where none existed.”

Tips for terminations

Y Review the employee’s file and any documentation from previous disciplinary discussions.

Y Plan what to say to avoid saying something later regretted. You might also want to role-play with another company employee. (Keep all information revealed in the role-play strictly confidential.)

Y Never argue with an employee to justify a termination decision. If you’ve taken appropriate action in reaching your decision (i.e., discussing the consequences of failing to meet performance criteria), the termination decision should not be a surprise to the employee. Be courteous, confident and firm.

Y Have a checklist for any company assets or other property that should be returned by the employee.

Y If you have any questions about the process or the circumstances that have resulted in the involuntary termination, consult with your legal counsel.

Y Have a witness to the meeting whenever possible. Make sure this person knows her role and has been briefed on how to respond to any comments.

Y If appropriate, change any security passwords, locks, etc. Don’t forget the PCs or any bank transfer PINs the employee might have.

Y Always preserve the employee’s dignity and keep all discussions confidential. No matter how angry you may be, treating an employee with respect and dignity during the termination process is good manners and good business sense.

Y Document the termination and refer to this memo whenever you are asked questions by a state or federal agency. You should communicate the facts consistently and honestly when asked.

Source: U.S. Small Business Administration

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