The best thing you can do to protect your company is to make sure you’re fully aware of all laws and guidelines that pertain to firing. At the same time, you need to train everyone who could be responsible for firing someone including supervisors, managers, and your HR team. If they’re not trained, and they fire someone the wrong way, it can create big liability and financial repercussions for the entire company.
Before even getting into the specifics of how to fire someone, all managers and employees in a position of any power need to be trained on retaliation and anti-retaliation laws.
This is a big area of concern for a lot of companies, because they may have failed to thoroughly train employees on these topics until this point. It can be easier in a wrongful termination claim to prove retaliation than to prove actual discrimination.
In 2017, OSHA released guidelines for anti-retaliation training programs. This includes not only the whistleblower laws that are enforced by OSHA but other forms of general retaliation. While OSHA primarily deals with whistleblower protection regarding health and safety concerns, their guidelines can be helpful to train employees on concerning all things related to retaliation.
OSHA describes retaliation as something that’s done against employees who raise or report concerns, noting it’s illegal and also detrimental to business. OSHA goes on to describe a proactive anti-retaliation program as one that appropriately receives and responds to employee concerns related to compliance.
OSHA outlines that a good anti-retaliation program should include management commitment and accountability, a system for listening to employee concerns, a system for responding to these reports, and anti-retaliation training for both employees and managers.
This is relevant to the topic of terminating employees because if an employee is terminated for what could even be viewed as potential retaliation, the business consequences can be enormous.
Along with it being illegal to retaliate against employees for reporting their health and safety concerns, other things that are illegal in terms of retaliation in the workplace include:
- You can’t retaliate against an employee for asking about salary information if they’re attempting to uncover wages that could be discriminatory
- An employee can’t be retaliated against or fired for asking for their religion or disability to be accommodated
- Retaliation can’t be a reason for firing an employee if they resisted sexual advances, or stepped in to help protect someone else
Some steps to avoid retaliation include having a formal policy against it that everyone is trained on, and everyone should be trained in hiring and employment decisions. Training should also focus on protected activities, and if an investigation is required, training needs to include how to keep it discrete.
So, as long as there is no chance that firing could be viewed as retaliation, what else should be considered?
Guidelines for Termination
As long as there is no retaliation and no discrimination, an employer can then start laying the groundwork for firing an employee. Firing is a process, however, and it should be viewed as such. First, it can be a good idea to use what’s called a progressive discipline policy.
This isn’t something mandated under law, but it does provide opportunities for important documentation and also consistency that can protect against liability if a terminated employee does try to take legal action.
Supervisors need to be very carefully trained in progressive discipline, consistency and how to enforce it.
If a business can show that they have a clearly defined progressive discipline policy and that they consistently follow it across all situations, it’s beneficial. While every policy is somewhat unique, there are some things these policies usually include.
For example, consequences will usually progressively get more severe each time an employee has a problem.
The policy will usually move from oral warnings to written warnings. Then a policy can progress to suspensions and ultimately termination. This takes the surprise element out of firing an employee, which can be helpful to prevent extreme actions on the part of the fired employee. It’s also good for other employees to be able to see this situation play out because they won’t feel like they could be next on the chopping block.
All of the steps leading up to a firing should be not only fair and consistent but also transparent.
Firing should be done face-to-face, so anyone who’s going to participate in these scenarios should be trained on this meeting as well. Everyone should come to the firing meeting prepared to answer the questions the terminated employee may have. All documentation should be brought to this meeting, and specifics should include when the termination becomes effective, and what will happen with their benefits.
Relevant employees should be trained on the emotional elements of firing an employee as well.
Employees and managers should be trained on how to respond if an employee responds poorly, and how to de-escalate the situation.
It’s important to be strategic in planning how the actual termination will be handled and what will be said because this can influence how the employee responds at the moment, but also how they might respond later down the road by badmouthing the company or filing a lawsuit as an example.
While you should train managers and supervisors to be prepared with documentation when they fire an employee, that doesn’t mean they need to go over their reason for firing that person in the actual meeting.
If a business has handled the steps leading up the firing appropriately to this point, there’s no need to explain the firing. The employee has already been part of the progressive disciplinary process, and they should have received warnings. Train managers and supervisor to understand that the more they say when they’re firing an employee, the more openings they’re providing for future legal issues.
Finally, training should also include how to handle things once the employee actually leaves. Most companies outline policies as to how their devices and information are handled. Everyone should be aware of these policies.
It’s also important to conduct an exit interview. Employees shouldn’t be allowed to have access to coworkers or their work area following a firing if at all possible.
Managers, supervisors, and everyone in the organization should also be trained on maintaining a sense of discretion and confidentiality following a firing.
There’s no way to make it easy to fire an employee. It’s always difficult, and it does leave the business open to potential problems, but sometimes it has to be done. While you can’t remove these factors, what you can do is have a streamlined, efficient and consistent policy that everyone is trained on to provide protection and make it as painless as possible.