While Donald Trump basks in the power to fire and belittle people on The Apprentice, reality is a lot different. Such behavior could land you in court, even in an at-will state like NH. Employers should thus have a legitimate reason for firing an employee and politely tell them that reason.
Most employees are at-will, but employers don't understand there are many exceptions to the at-will doctrine, says Debra Weiss Ford, an employment attorney with Jackson Lewis LLP in Portsmouth. And a tight job market means former employees are more likely to sue for unlawful treatment, be it age-based or a retaliation claim.
Making the Decision
Once an employer decides to fire someone, it's time for a trip to the filing cabinet. Check that the personnel file has documentation of performance reviews, any written warnings, attendance records and other documents related to performance, says James P. Reidy, an employment attorney with Sheehan Phinney Bass + Green in Manchester.
If you're starting to panic about your lean personnel files, you're not alone-it is a particular problem among small employers, says Charles L. Greenhalgh, a partner with Cooper Cargill Chant in North Conway. Leslie Leonard, an associate attorney with the firm, recalls a recent case where the employer arrived with a manila file folder with just four pages and the woman fired had worked for the employer for 15 years. Ultimately without paper backup on either side, it's essentially a he said, she said' argument and then you rely on other employees, and they may not be your best defense. The best defense you can have is a really good paper record of what you did, Greenhalgh says.
Employers should come to the termination meeting with a final paycheck. If not, Greenhalgh says departing employees should sign a document confirming their address to avoid claims the check didn't arrive in the required 72 hours. Employers should also bring a letter detailing COBRA benefits. The state does not require payout for unused vacation time, but if employee handbooks guarantee it, it must be provided.
Reidy says to set a meeting time in advance to discuss a few things and ensure there will be no interruptions. There are times, Ford says, that employers will let employees resign in exchange for severance and a release from future claims. It's sometimes appropriate and it can benefit both employers and employees, she says. She adds that general rules of conduct and grounds for a termination should be clearly stated in the employee handbook.
In the Moment
There is no requirement that employers give a reason for firing, but it is recommended. The best practice is to be honest and direct and give the real reason, Ford says. If you don't, the employee tends to think it is for the wrong reason. That, she says, is when wrongful termination lawsuits arise.
Reidy says common reasons for termination include poor performance and attendance, inappropriate behavior, conflicts with co-workers, numerous safety violations, and not meeting job requirements.
All lawyers interviewed agree that firing should be done in person whenever possible (no emails, texts, or phone calls). And Rei-dy says employees should be allowed to respond, though no lengthy discussion is needed. He also says it can help to have another employee, often HR, to serve as a witness.
Don't promise unemployment benefits either, Reidy warns. NH Employment Security determines eligibility, and it is not always granted. However, Ford says, Unless the employee is terminated for a gross misconduct, they are likely going to get unemployment benefits.
Preventing Lawsuits
There are several reasons employers approach terminations with wariness. Age discrimination and retaliation claims are top concerns, as is a new legal hangup called the cat's paw. That refers to managers firing an employee based on a reason given by a supervisor that turns out to be false, and can thus result in a wrongful termination claim.
Leonard says large companies are increasingly faced with age discrimination cases when they fire older workers and replace them with new blood. If the reason you're laying off is their age, you have a problem; if the reason is their skills don't match the need and they haven't updated their skills, that is okay, he says. But companies must consider whether training was offered, Greenhalgh says. Reidy adds that ageism, according to federal law, applies to anyone over age 40, so employers need to be wary when firing older workers.
And while it may seem convenient to terminate someone out on protected leave under the Family and Medical Leave Act, such as a new mom, do so carefully, says Reidy. This can be done, but it's a dangerous proposition.
The Follow-up
When the inevitable happens and a former employee starts interviewing for new jobs, have a plan. Ford cautions employers to be consistent. I wouldn't give a reference for those who were good employees and not for those that were bad, she says.
Most employers just take the rank, file and serial number route confirming basic facts. Reidy says employers need a plan-understood by the receptionist and other employees answering the phone-on who takes calls related to former employees.
In the end, it comes down to fairness, Reidy says. Fairness is very important in the termination process. The person may never agree, but if they are treated fairly it goes a long way, he says.