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Firing: Balancing Compliance with Compassion

February 12, 2019 By Diana Cleveland - Leave a comment

shutterstock_236277664Firing is always a touchy subject for any employer or employee. But the separation process - whether firing, lay-off, or voluntary resignation - can be fraught with challenges and possible missteps. In an hourly work environment, turnover is often very high, so it’s always best to know more about separations, rather than make a mistake that could cost you a class-action lawsuit.

Honesty is the Best Policy

It’s never an easy discussion to have, but don’t try to sugarcoat, tip-toe around key issues, because this can cause other problems down the line.

Approach the employee with your evidence – this conversation shouldn’t be a surprise to them. Before a you ever reach a termination conversation, there should be written warnings and discipline actions taken. These is not required by law, but following a process before termination can save you in the courts by providing evidence to base your termination in case an employee claims discrimination or retaliation. Be clear about the reason behind the termination as well. When employees know they will be less likely to assume discrimination or retaliation. 

This level of honesty can be challenging to address and hurtful for the employee to accept. But don’t avoid firing low-performing workers just because the conversation is difficult. Low performers can actually bring down morale and put more work (and more stress) on your higher performers – bringing them down and your overall efficiency. For many hourly workforces, one poor performer reflects badly on the entire site.

Forty four percent of respondents to the Eagle Hill Study reported that low performers increased the burden of work on their high performing peers, resulting in fifty four percent saying that low performers contributed to a workplace culture that promoted and accepted mediocrity. By avoiding a termination conversation, you are setting the standard for poor performance in your business.

Not every termination conversation will go well; that is just the nature of the situation. But approaching employees with compassion can make the conversations go much easier, because honesty without compassion borders on barbaric. The employee isn't just a low performer or a bully – they are humans who made mistakes. Understanding this and approaching the conversation with this attitude will drastically change your results.

Always Focus on Compliance

Legally, most employers can fire employees at anytime since most employees are engaged “at-will.” This means the employee can leave at any time and the employer can terminate at any time – for almost any reason. Any reason that is legal, of course.

Discrimination and retaliation are the big keyword when it comes to illegal termination. As far as discrimination goes, employers cannot fire employees on the basis of:

  • Race
  • Gender
  • Sex (including gender identity, sexual orientation, and pregnancy)
  • Religion
  • Age
  • National Origin
  • Disability
  • Genetic Information

Employers have also used firing as retaliation for a whole slew of things, but the most common, and biggest “do not” retaliation cases relate to protected leaves, such as FMLA and ADA, or after an employee files a complaint, whether it relates to sexual harassment or discrimination. In order for employers to stay compliant, ensure that you continually to educate managers--i.e. the front-line staff who handle most terminations—about wrongful and illegal termination.

Keep A Record

Finally, document it! This, though, can be a struggle for paper-heavy organizations or hourly workforces. Firing, for most workplace issues shouldn’t be the first response, and if a situation does lead to a forced separation, there should be careful documentation of the issues leading up to the termination.

With an integrated human capital management system, you can document issues that lead up to termination of an employee: time sheets, performance reviews, performance journals, and disciplinary forms all collected to support your case. After a clearly communicated reason for leaving, this leaves little ground for any employee to wage a class action lawsuit--and even if they did your company is backed by documented evidence. Get a demo today to see how EPAY’s human capital management system can improve your workplace process and maintain compliance.

Filed Under: Compliance, Workforce Management