Letting go of an employee is never easy, especially for small businesses and startups.
One thing you want to avoid is giving the employee cause for a wrongful termination lawsuit. How you handle firing someone can make a big difference in their reaction and the potential for a lawsuit.
Sometimes employees file a claim against you for wrongful termination and attempt to sue. When you have an appropriate termination plan in place, you can generally avoid costly litigation.
Keep reading for five steps your HR team should take to avoid wrongful termination lawsuits straight from a small business lawyer in San Jose, California.
1. Clearly Explain Work Expectations from Day One
If your HR team needs to fire an employee, it should not come as a surprise to the employee or their peers. You can make this happen by outlining what you expect from your employees from day one.
Create and provide a detailed employee handbook that covers all rules and company policies associated with the workplace. Have a manager go over the handbook with every new employee to answer questions and address concerns.
Always ask your employees to sign a document stating that they received the handbook and understand the rules inside. Provide them with a copy and keep the original in their employee profile. Proper documentation will protect your business from an accusation of unjust termination.
The employee handbook should also include a breakdown of the disciplinary process. Every employee should understand the grounds for termination and the steps you will take to fire them.
Have managers or HR staff host periodic employee training to refresh the information and uphold quality standards. You should perform training for all your employees, but you can single out those who need refreshing more often as part of your disciplinary process.
2. Create a Termination Plan and Train Your Managerial Team
Create an appropriate termination plan to include in your small business’s employee handbook. Distribute it to your HR staff and managerial teams and train them on the plan. Take the opportunity to refresh their understanding of various company policies as well.
Be sure that they all understand how to communicate to an employee during the termination process so they do not feel discriminated against or stigmatized.
Reinforce your team’s sense of responsibility and provide tips on how to communicate efficiently and effectively. This process will make responding to an upset employee second nature since they will not need to wonder how to respond.
3. Provide Warnings and/or a Probationary Period
Firing an employee should not take place during the first conversation about their performance. Providing warning is a vital step in the termination process and will help prevent employees from getting blindsided when the time finally comes.
HR may use an informal verbal warning at first to alert the employee of their behavior. It can then escalate to more formal written warnings if needed.
During the warning process, you must document everything! Thorough documentation of the rules the employee broke and your attempts to correct the situation before firing will help you win a wrongful termination suit.
You may want to discuss with HR about providing a probationary period for underperforming or disruptive employees as well. During the probationary period, HR needs to help employees overcome their underperformance through target and goal setting. Consider offering further training and resources to help the employee get on track and provide a timeline for how long they have to fix the situation.
Do not forget to document, document, and document some more as you continue through the termination process.
4. Choose The Timing Carefully
Always choose the timing carefully to catch your employees when they are not feeling overly stressed or tired. Pick a slower time of day so you do not interrupt them during a busy moment.
Aim to have the conversation in a private place away from the rest of your employees. If they get upset and you need to calm them down, it will not interrupt your team’s workday.
Avoid terminating employees on a Friday because they already feel anxious. It is better to schedule time at the beginning of the week.
Lunchtime is a decent time to speak with an employee about termination or to give them a warning. If you do not want to interrupt their lunch, choose another time when the disruption will have the least impact on your small business.
5. Be Kind and Treat the Employee with Respect
Finally, remember that no matter how poor an employee is, the person you need to terminate is still human. They have feelings and emotions like everyone else and deserve to be treated respectfully if the cause for termination is not heinous.
Show compassion during the conversation and be supportive without saying too much or making any promises. Communicate that you understand the situation is difficult and show kindness.
Staying calm helps control the situation and helps ease their nerves. They need to overcome the situation so you want to make it as unremarkable as possible.
You can get help from a fellow HR representative or trusted colleague if you think you will need a witness. Having another caring person in the room can also help soften the blow.
Offer a small severance if you feel it is appropriate. A little bit can go a long way.
End the conversation on a positive note and wish them all the best for the future. Shaking hands can show that you still respect the employee even if they did not work out.
Get Professional Legal Advice from a Small Business Lawyer in San Jose, California
Do not make firing an employee more difficult by complicating the situation. Make sure your employees understand what you expect from them and communicate when you feel they are not meeting those requirements. Being kind and open will prevent a lawsuit more often than not.
If you do need help with a former employee suing for wrongful termination, it is time to hire a lawyer.
Find a reliable and knowledgeable small business lawyer in San Jose, California by contacting Grellas Shah, LLP. Working with Grellas Shah means you get access to small business lawyers with more than three decades of experience in California employment law.
Contact Grellas Shah, LLP today!