Legal Do*s and Don*ts for Hiring and Firing

Report
Andrea Shindlebower Main
Kentucky League of Cities
February 2014
Discharge of Employee Important to Note
It is important to note that any time you are going to
terminate an employee that you contact your city
attorney.
In addition, if you have KLC insurance you can have
your city attorney contact us and in some
circumstances we can provide defense counsel at little
or no cost to walk them through the process.
This might not prevent a lawsuit, but it makes any
litigation that may occur because of the termination
easier to defend.
Documentation, Discipline and
Discharge
 At-Will Employee
 What does is mean?
 What are the limitations?
 Prevention
 Proactive strategies to help prevent the need for discipline
and discharge
 Documentation
 Who, What, Where, When, How & Why
 Discharge Process
 Before, During and After
Employment At Will –
What does it mean?
 Employment at Will
 Employer can terminate "for good cause, for no cause, or
for a cause that some might view as morally indefensible."

Real Reasons Given for Terminations*:
 Wearing Orange to Work
 Being too attractive
 Wearing Green Bay Packers Tie
*Disclaimer we do not recommend using these reasons
Employment At WillLimitations
 Employment at Will is Limited
 Federal, state and local laws can limit at-will terminations
 Federal Laws:

Title VII of the Civil Rights Act
 Protects against discrimination based on:
 Race
 Gender
 National origin
 Color
 Religion
 Age (over 40)
 Disability
 Military Status
Employment At WillLimitations
 Employment at Will is Limited (cont.)

Prohibits discrimination in all employment practices against
individuals in protected classes.
 Does not just apply to termination
 Recruiting, Selection, and Hiring
 Training
 Classification, Assignment and Transfer
 Compensation, including fringe benefits
 Work Environment
 Promotion and demotion
 Discipline
 Any other aspect of employment constituting a term or
condition.
Employment At Will –
Limitations
 Employment at Will is Limited (cont.)
 State Law:
 Kentucky Civil Rights Act – KRS 344


Same protections as the Federal Law
 Protects against discrimination based on race, gender, national
origin, color, religion, age (over 40) and disability.
Adds protected class: status as a smoker or non-smoker
Specific Federal and State Law –
Limitations
 Age Discrimination in Employment Act
 Age Discrimination (ADEA)
 Over the age of 40
 How to handle termination of person over the age of 40:
 Under the ADEA, there has to be a valid reason -- not related to age
-- for all employment decisions.
 Examples of valid reasons would be poor job performance by the
employee or an employer's economic trouble.
 In the case of layoffs, a company cannot use age as the basis for
determining who is laid off and who is kept on. If most people who
are laid off are 40 or older, and the majority of workers kept on are
younger, there may be a basis for an ADEA complaint or lawsuit,
especially if the employer has hired younger workers to take the
places of workers over 40.
Specific Federal and State Law –
Limitations
 Age Discrimination (ADEA) (cont.)

Lay off
 If an employer offers a severance package to an employee who is over
age 40, and the employee is asked to sign a release, specific
requirements must be met in order to comply with the Older
Worker's Benefit Protection Act (OWBPA), in order for the
employee's waiver of rights to be valid.
 Among other requirements, the release must include a 21-day
review period as well as a seven-day revocation period;
 the language of the release must be understandable to the average
protected employee;
 and the employee must be advised in writing that she has the right
to consult an attorney prior to signing the release.
Specific Federal and State Law –
Limitations
 Pregnancy Discrimination Act


Pregnancy discrimination is defined as discrimination on the
basis of pregnancy, childbirth, and related conditions.
Pregnant employees must be permitted to work as long as
they are able to perform their jobs.
 If a pregnant employee is unable to perform certain aspects of
their job, such as heavy lifting or working with toxic chemicals,
the employer must accommodate to the same extent it
accommodates other temporarily disabled employees, such as
providing “light duty,” shifting certain job duties to other
employees, or permitting transfer to a vacant position.
Specific Federal and State Law –
Limitations
 Pregnancy Discrimination Act (cont.)

Cannot terminate an employee based on the fact that they
cannot perform a job due to the pregnancy
 If no accommodation available they would be entitled to
leave based on your personnel policies OR past practice
FMLA – 50 or more employees
 PTO
 Unpaid leave


Employer cannot move pregnant employee to another
position because of the employers safety concerns.
 Employee can voluntarily request to be moved
 Employer would accommodate as they would any other
employee with a temporary disability
Specific Federal and State Law –
Limitations
 ADA (Americans with Disabilities Act)


Protects employees with a disability that are qualified to do a job
with or without a reasonable accommodation
Under the ADA, an employee has a disability if they have a physical
or mental impairment that substantially limits a major life activity
 Major life activities include but are not limited to:


Caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.
A major life activity also includes the operation of a major bodily
function, including but not limited to, functions of the immune system,
normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.
Specific Federal and State Law –
Limitations
 ADA (Americans with Disabilities Act)


The ADA also protects employees that have a history of a
disability
Or if an employer believes that an employee has a disability
 An individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes that he
or she has been subjected to discrimination because of an actual
or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
Specific Federal and State Law –
Limitations
 ADA (Americans with Disabilities Act cont.)
 Cannot termination a person with a disability because they can no longer
perform a job
 Reasonable Accommodations
 A reasonable accommodation is a modification or adjustment to a job,
the work environment, or the way things usually are done that enables a
qualified individual with a disability to enjoy an equal employment
opportunity, unless to do so would cause undue hardship.
 Examples of reasonable accommodations include:
 Making existing facilities accessible;
 Job restructuring;
 Part-time or modified work schedules;
 Acquiring or modifying equipment; or
 Reassignment to a vacant position.
Specific Federal and State Law –
Limitations
 ADA (Americans with Disabilities Act cont.)
 Reasonable Accommodations – Undue Hardship
 The only statutory limitation on an employer's obligation to provide
"reasonable accommodation" is that no such change or modification
is required if it would cause "undue hardship" to the employer.
 "Undue hardship" means significant difficulty or expense and
focuses on the resources and circumstances of the particular
employer in relationship to the cost or difficulty of providing a
specific accommodation.
 Undue hardship refers not only to financial difficulty, but to
reasonable accommodations that are unduly extensive, substantial,
or disruptive, or those that would fundamentally alter the nature or
operation of the business.
 An employer must assess on a case-by-case basis whether a particular
reasonable accommodation would cause undue hardship.
Specific Federal and State Law –
Limitations

Are these requests for reasonable accommodations under the ADA?

Example A: An employee with a hearing disability must be able to
contact the public by telephone. The employee proposes that he use
a TTY to call a relay service operator who can then place the
telephone call and relay the conversation between the parties.

Example B: A clerk easily becomes fatigued because of lupus and, as
a result, has difficulty making it through her shift. The employee
requests a stool because sitting greatly reduces the fatigue.

Example C: An employee tells his supervisor that he would like a new
chair because his present one is uncomfortable.
Specific Federal and State Law –
Limitations
 USERRA
 Cannot terminate based on the fact that the employee is
in, or has been in, the military service


Prohibits discrimination against individuals who enter the military,
reserves, National Guard, Coast Guard, or other military services.
Requires reemployment of individuals with no loss of pay, seniority, or other
benefits.
Specific Federal and State Law –
Limitations
 USERRA - FYI

Requires reemployment of individuals with no loss of pay, seniority, or other benefits.
o Five conditions of reemployment
1.
Must have a civilian job
2.
Must provide written or verbal notice prior to leaving
3.
Must not exceed the 5 cumulative years of service
o
4.
5.
Exceptions to the 5 year rule:
o Unable to obtain release from service
o Required drills and annual training and other training duty certified by the military
o Service performed during national emergency or time of war – includes voluntary and
involuntary service
Must be released from service under conditions other than dishonorable
Must report back to the civilian job in a timely manner or submit a timely
application for reemployment.
Employment At Will –
Limitations
 Employment at Will is Limited (cont.)
 Local Laws

Fairness ordinances
 Sexual Orientation and Marital Status
 Morehead, Vicco, Covington, Lexington, Louisville
 Local ordinance limiting action to “for cause” or “good
cause.”


Implies a fair and honest reason for terminating an employee
Mayor / Council form – Mayor still has ultimate authority to
remove
Employment At Will –
Limitations
 City Specific Issues by State Law
 Police and Fire (KRS 95 and KRS 15)

Hearing process
 Non-elected officers (KRS 83A.080)

Written Reason for Dismissal
 City Managers (KRS 83A.150)

Hearing process
 Urban County Governments (KRS 67A.280)

Hearing process
 Civil Service System (KRS 90)

Hearing process
Employment At Will –
Limitations
 City Policies – Be careful about using the term “Probationary”
 Legal trend is to advise against the inclusion of such language in
employee manuals for normal employees.
 Generally included only if there is some period must be satisfied
prior to gaining some type of benefit.

Must be an employee of the city for 90 days before eligible for health
insurance
 Less popular because the implies the once period has ended, the
employee becomes tenured, has some greater contractual right, or
modifies at-will standard to “just cause” only terminations.
 If included, other terms such as “introductory period,” “orientation
period,” or “trial period” should be used.
 Disclaimer should be included if the term probationary is
referenced anywhere in the handbook and a separate
acknowledgement should be signed by any new employee.
Employment At Will –
Limitations
 However using a term such as “trial period” …
 For city police and fire, can be considered a good
practice

Do not have to follow police officer bill of rights or hearing
procedures during this period!
 See Rottinghaus v. Board of Commissioners, 603 S.W. 2d 487
(1979) where the court said the “probationary provisions did
not constitute a disciplinary regulation, but rather a legislative
directive setting up a process for evaluation of a potential
member of the police department.” OAG 82-577
Employment At Will –
Limitations
Questions about employment at will or the
limitations?
An Ounce of Prevention –
Proactive instead of Reactive
 How do you become proactive instead of reactive?
 Treat all employees with:




Dignity
Respect
Courtesy
Fairness
An Ounce of Prevention –
Proactive instead of Reactive
 Poor employee relations can result in the need for
disciplinary measures as they can cause:
 Absenteeism
 Poor Performance
 Low Morale
 Turnover
 Litigation
An Ounce of Prevention –
Proactive instead of Reactive
 What else can you do that is proactive?
 Determine major job duties


Clear job descriptions
Make sure they are current – update frequently
 Define Performance Standards
 To use as a benchmark in measuring actual performance.
 Make sure employee performance standards are expressed in terms
of quality, quantity, timeliness or cost savings.
 Communicate performance & behavior expectations
 Provide an orientation or on boarding program for new employees
 Review job descriptions and performance standards with employees
 Have written policies and procedures regarding rules – and review
them with employees
An Ounce of Prevention –
Proactive instead of Reactive
 What else can you do that is proactive? (cont.)
 Establish a climate of communication


Open door policy
Provide ongoing coaching and feedback
 How well are they doing?
 What can they do to improve?
 Document job performance
 The good and the bad
 Evaluate job performance
 Annually – bi annually – follow policy
 Provide effective training & resources
An Ounce of Prevention –
Proactive instead of Reactive
Questions or comments about being proactive?
Progressive Discipline Principles
 Four Principles Surrounding Effective Discipline
 Corrective
 Fair
 Consistent
 Progressive
Progressive Discipline Definition
 Progressive Discipline – What is it?
 A system of increasingly severe penalties for each time
an employee is disciplined for any of the following
during an active period (usually 12 months):




Same situation
Similar situation
Serious situation
Series of situations - bundling
Progressive Discipline Goals
 Goals of Progressive Discipline
 Correct undesirable conduct, rather than to simply
punish;
 Communicate problem issues directly and in a timely
fashion;
 Include employees in the problem solving process;
Progressive Discipline Goals
 Goals of Progressive Discipline (cont.)
 Provide proof that you made an effort to rehabilitate the
employee before the ultimate decision to terminate; and
 Demonstrate that there was no other alternative but to
terminate the employee because they refused to accept
the “invitation” to improve their conduct or performance
Progressive Discipline Steps
 Progressive Discipline Steps
 Coaching / Review Expectations
 Verbal Reprimand
 Written Reprimand
 Suspension
 Termination
 What is set out in your city policies!
Progressive Discipline Steps
 Step 1 – Coaching
 What is the goal of coaching?
 Reestablish Expectations
 Resolve the problem before it progresses any further

Address minor infractions before they come major infractions
 Establish two way communications
 Clearly identify the substandard performance or
behavior
Progressive Discipline Steps
 Step 2- Verbal Reprimand
 What is the Goal?
 Informal communication to the employee about an issue
 Discussions need to include:
 Specific incident
 Time and place of the incident
 Effects of the incident
 Set expectations
 Possible consequences
 Follow the verbal reprimand with a confirming memo
Progressive Discipline Steps
 Step 3 – Written Reprimand
 What is the goal?
 Last chance agreement
 Lets the employee know that a breach of a final written
warning could or will result in discharge
 A final warning offers few alternatives

Specifics on documenting written reprimands is addressed in
the next section
Progressive Discipline Steps
 Step 4- Suspension
 Goal of suspension?
 Used to investigate the facts
 Provides “breathing space” to deal with what appears to be
serious misconduct
 Allows time for consultation with higher levels of
authority who are not readily available
 Never terminate on the spot even if employee has
seemingly made a dischargeable offense, instead
investigate


Collect evidence from both sides of the story and get the board
of commissioners and the city attorney involved
Investigate within 48-72 hours of the incident
Progressive Discipline Steps
 Step 4- Suspension (cont.)




Review past practice.
 Make sure that other employees have been treated in the same
way in other similar circumstances
Suspension is the last means of corrective action prior to
termination
Normal length of suspension should not exceed 3 working
days
 However, there may be times where longer or shorter
suspensions will occur
Read your policy regarding pay during suspension
 If unpaid and employee found to be “innocent” they need to
receive “back pay” for the time they were suspended without
pay.
Progressive Discipline Steps
 Step 4- Suspension (cont.)
 Basics of Suspension Letter

A suspension letter should include:
 Review of past disciplinary action, if any
 Policy regarding suspension
 Specific reason for suspension
 Expected behavior or performance
 That suspension is their last warning
 Further violation may result in discharge
 The length of suspension
 The date and time employee is to resume work
Progressive Discipline Questions?
Questions about progressive discipline?
Documentation –
What Actions Call for Documentation?
 Documentation
 What employment actions call for documentation?
 Mid-year and or annual performance reviews
 Violation of city policy, procedure, practice, or code of ethics
 Attendance issues
 Poor performance
 Demotions
 Promotions
 Change in job duties
 Training needs and accomplishments
 Merit increase decisions based on performance
Documentation Details
When to begin?
 Documentation
 When should you begin formal documentation?

Assess each instance on a case by case basis, but be consistent



Depends on the severity of the behavior, frequency,
prior coaching or counseling, and employees intent
For example an employee is late one time …
For example if an employee punches a coworker …
Documentation –
Goals
 Documentation
 What is the goal of documentation?
 To create a record of employment history
 Why is documentation so important?
 It establishes a record of employment actions taken and the
reasons for the actions



Memories fail
If promotion or termination occurs you need
something to back it up!
Informs employees of what is expected of them and the
consequences if they don’t meet expectations

Employees should never be surprised when they are in
a termination meeting
Documentation –
Importance
 Documentation
 Why is documentation so Important? (cont)

From a performance management standpoint, it serves as a
written record to guide both the employer and the employees
future behavior.




Gives the employee an opportunity to improve
Or advises the employee that they are on the right
path
It serves as evidence for actions taken, in the event the
employee takes formal or informal steps with a claim against
the city
It assures fair and equitable treatment to all employees
Documentation –
What if there is no documentation?
 Documentation
 What are implications of not documenting?

Performance or behavior doesn’t improve


Negative impacts on the city, as well as employee
morale, and eventually the managers own
performance
Increased frustration


Managers / Department Heads
Co-workers
Documentation –
What if there is no documentation?
 Documentation
 What are the implications of not documenting? (cont.)


Misunderstanding on the interpretation of discussion
between the employee and the employer
Employees may not be treated equally



May end up with a discrimination claim
May end up with a wrongful termination claim
If claim is filed against the city there will be a lack of
documented formal evidence for defense of legal claims
Documentation
Who is Responsible?
 Documentation
 What documentation is supervisor/manager responsibility?
 Handwritten or typed notes from coaching or counseling sessions
with employees.
 Written comments including specific examples in performance
reviews
 Disciplinary actions


Warning documents with specific examples and
consequences
Business reasons for employment actions



Demotions
Promotions
Layoffs
When to Consult?
 When to consult with city attorney (cont.)
 Demotions
 Promotions
 Work/life balancing matters
Telecommuting
 Flex schedule
Harassment claims
Final written warning
Egregious code of ethics or personnel policy violations
Layoffs
Terminations






When to Consult?
 When to consult with city attorney
 Request of an accommodation – religious and medical

What are the essential functions of the job?
 Job description
 Before terminating employee that is on FMLA or
Workers’ Comp

Could it be considered retaliation for FMLA request or for
being on workers’ comp?
 Significant changes to job duties

Job description
Documentation –
When?
 Documentation
 Make sure that you discipline as close to the time of the
infraction as possible but not in the heat of the moment
Documentation –
Investigation
 Documentation
 Do investigate each incident regardless of how it first
appears





Select an appropriate time and place to meet with the
employee privately
Document
Allow the employee to explain
Listen and respond in a calm manner
Confer with board of commissioners / city attorney for their
recommendation on how to proceed based on your personnel
policies, ethics ordinance, federal, state and local law.
Documentation –
Investigation
 What to consider when investigating









Facts surrounding the incident
Seriousness of the infraction
Was the employee informed of the work rules
Have they been previously advised, coached or warned about the
issue
The degree to which the action hampers the city’s mission or day to
day operation
Any previous documentation of performance problems in the last 36 months?
Was the employee provoked?
How thoroughly have you examined the issue?
How were other employees who were in this situation disciplined?
 Consider policy vs. past practice
Documentation –
How to Document
 How to document
 Follow the city policy
 Start early



Make it a habit to discuss all employees’ performance with
the employee continuously as part of the performance
management process.
Include positive and negative feedback
Tell employees in advance what is expected (on boarding
or new employee orientation)
Documentation –
How to Document
 How to document (cont.)
 Don’t wait hoping the issues will improve
They usually won’t
 Document only the facts
 Not subjective thoughts or conclusions


Subjective example –
 Your typing error rate is too high
 You need to improve your customer service skills


Do any of these statements set expectations?
Objective examples –
 You are averaging 40 wpm while the departmental average for
admins is 55 wpm
 I expect to receive zero customer service complaints over the next 30
days

Quantify!
Documentation –
How to Document
 Documentation

Good documentation answers these questions:





Who
 Was/Is involved and their position
 Are there any witnesses?
What
 Describe the incident
 What rule or policy was violated?
Where
 Was it on the city property?
When
 Did it occur during work hours?
 Off duty?
Not why unless the employee gives their own explanation
Documentation –
How to Document
 How to document (cont.)






Use city warning letter template
Describe the specific behavior or actions
Use verbs
Do not add comments, insights or interpretations
Include a statement of the policy, procedure, ethics violation or
rule that was violated
Include the actual or potential consequences of the offense
 In addition to the discipline include:
 Burden on coworkers
 Possible hazards from the conduct
 Contribution to lack of harmony and cooperation among
coworkers
 Costs to the city - lawsuits
Documentation –
How to Document
 How to document (cont.)

Include the outcome that is expected
 Work Improvement Plan
 Follow-up date for a meeting

Depending on the type of improvement that is required


Usually 60-90 days
“Failure to improve as outlined in this letter by xyz date
may result in further disciplinary actions, including
termination.”
Documentation –
How Should it Read?
 Documentation

No matter how informal the documentation, ask yourself
these questions:





Do I restrict my written comments to an employee's on-the-job
performance?
Do I remain objective when it comes to analyzing an employee's
work?
Do I consider how my words may be construed as
unprofessional, demeaning or sarcastic?
Do I make certain that I get all the facts from all involved
parties?
How would it read in court?
 Does it suggest a discriminatory or retaliatory motive?
Documentation –
Formal Written Warning

Formal written warnings

Ask employee to sign indicating that they
had the discussion
 received a copy
 and understood the document


Formal Written Warning

What if they refuse to sign?


Allow them to write a response and attach to the
documentation
Have third party come in to witness it was done
Documentation –
Formal Written Warning
 How to document (cont.).
On January 12, 2014, I spoke with John Smith in regards
to his excessive tardiness. I asked if there was a particular
reason as to why this was happening on a daily basis.
John said there was not and that he would be on time
from now on.
 What is missing?
Documentation –
Formal Written Warning
 How to document (cont.) - What was missing from
the documentation on the previous slide?
 Needs specific dates of tardiness and the exact times
 Include references as to how this effects other employees
 They are having to pick up the slack when they are late and they are resentful
 Bad for morale because it is unfair that you can be late without consequences and they
get to work on time every day
 Need an action plan
 Have the employee assist in coming up with the action plan –



Can get up earlier
Can lay out clothes the night before
Change in hours
 Need consequences for not following through with action plan
 If employee is late one more time in the next 30 days they will be terminated
 Need a follow up date
 30 days – February 12, 2014
 Signatures
 Employee
 Supervisor
Documentation –
Formal Written Warning

Formal written warnings (cont)
Give a copy to board of commissioners
 Place in Personnel File
 Document the discussion from the meeting in
writing
 Discuss any issues with Board of
Commissioners / City Attorney
 Sample

Documentation –
Formal Written Warning Sample
Sample Letter – Written Warning
(On City Letterhead)
Hand Delivered
Date
Employee Name
Home Address
City, Province, Postal Code
Dear Employee Name,
This letter will confirm our discussion today during which you were advised that your recent <behavior, performance,
attendance, punctuality, breach of policy, etc> is not acceptable, specifically…..<briefly describe the specific elements of
behavior or performance that are unsatisfactory or in breach of policy>. You were also advised that immediate improvement
is required. The plan that we discussed was <include plan of action>.
We rely upon each employee to perform their jobs to the best of their ability and at a satisfactory level as well as to abide by
our policies, which are designed to make our working environment a positive and productive one. As a member of our team,
when you fail to meet these expectations, it has a negative effect on the company and on your co-workers, which is not
acceptable.
Continued…
Documentation –
Formal Written Warning Sample
Sample Letter – Written Warning Continued …
It is expected that you will immediately address this situation and that further discussions will not be required. However, if
there is a need to again have a discussion arising from a lack of corrective action being taken by you, the company reserves
the right to impose further disciplinary actions, up to and including suspension without pay and termination of employment.
Should you require assistance or have any concerns going forward, please do not hesitate to discuss them with me. We
continue to believe that you can be a valuable part of our team in the future and look forward to seeing positive actions and
results from our discussion.
Sincerely,
Signature
Manager’s Name
cc. Employee File
I understand the contents of this letter, the expectations of me from the company and that I will be subject to further
disciplinary action should I fail to improve my <performance, punctuality, attendance, conduct, etc>.
_________________________________________
Employee Signature
Date
__________________________
Documentation –
Summary
 REMEMBER:


Documentation is important for both the employee and
the employer
Good documentation answers the questions


Who, What, When and Where
Document Early. Don’t wait!
Documentation –
Summary
 REMEMBER(cont.):





Discussions without documentation only equals
misunderstandings
Discuss and document only the facts
Give specific examples on what the employee has done
wrong and on ways they can improve
Always consult with your attorney on matters concerning
FMLA, ADA, harassment claims, final warnings and
definitely before termination
Ask employee to sign documentation of disciplinary
actions
Documentation –
Questions
Questions about documentation?
Discharge –
Pre-termination Checklist
 Now what?
 Follow your pre-termination checklist


Make sure all bases are covered
Sample – next slides
Discharge
Sample Pre-Termination Checklist
 Documentation
 Pre termination checklist
The following items should be considered prior to the termination of an employee.
Not all items will apply to all employees or all circumstances.
___
Determine if the termination is the fault of the employee or the system. If the latter,
termination may not solve the problem and may lead to litigation, lowered morale and
employee and customer defection.
___
The employee’s personnel file has been reviewed and there is proper documentation
supporting the termination decision, including investigation, warnings and witness
statements.
___
Any company policies and procedures violated by the employee are reasonably related to
the operation of the business or the employee’ job performance.
___
The termination procedure follows company policies and procedures.
___
Other employees have been treated similarly under the same or similar
circumstances.
Discharge
Sample Pre-Termination Checklist
 Documentation
 Pre termination checklist Cont.
___
The employee has been subjected to progressive discipline where warranted.
___
If the employee is within a protected class (over 40, female, minority, disabled, etc.),
discriminatory motives have been ruled out.
___
All employee complaints have been fully investigated and the recommended termination is
not the result of retaliation for communicating any grievance, claim or complaint.
___
Before recommending termination, have you considered: restructuring the job; moving the
employee’s work location; a demotion; a transfer; new supervision; leave without pay;
referral to an employee assistance program; voluntary resignation; or other alternatives?
___
There are no implied, written or oral contracts with this employee governing the
termination decision.
Discharge
Sample Pre-Termination Checklist
 Documentation
 Pre termination checklist cont.
___
The termination has been independently reviewed and approved by the Executive
Authority.
___
Written notice of termination has been prepared.
___
A plan has been adopted for informing the employee of their termination in a brief and
dignified manner.
___
Termination is set for xyz date in the morning at the employee’s office or in the conference
room. ** Many studies suggest that Monday through Wednesday are the ideal days to
part ways with an employee because it gives days for the ex employee to get their
affairs in order and to contact the company with questions that may come up 24-28
hours after the separation. Many times they have questions regarding COBRA or
unemployment. It also allows you time within the week to schedule your current
employees for meetings and deal with reactions. Better to discuss quickly than to
allow current employees the weekend to stew over it.
___
City attorney / liability insurance provider has been consulted prior to the termination
decision.
Discharge –
Guidelines for the Termination Meeting
Before the termination meeting:





Have written notes for what to communicate.
Time the meeting carefully.
Schedule a conference room in advance, if necessary.
Hold the discussion in private.
Have someone else in the room – the mayor,
commissioner, the supervisor, city attorney, or other
HR person.
 Make sure that someone in the room has a good
understanding of benefits in the event the employee has
questions.
Discharge –
Guidelines for the Termination Meeting
During the termination meeting:
 Avoid small talk.
 Plan the message and stay the course.
 The message of termination should be relayed immediately after
the meeting begins.
 Avoid a long build-up to, “soften the blow” because this will only
confuse and cloud the message.
 Remain calm.
 Clearly state the reason for the termination.
 The employee should be provided facts supporting the decision and
then provided a moment or two for the words to settle.
 When speaking to the employee, managers should attempt to
remain positive in tone.
 It is important to be compassionate, yet factual, and considerate,
without being apologetic.
Discharge –
Guidelines for the Termination Meeting
During the termination meeting (cont.):
 Avoid personal references or accusations.
 Make it clear that the employee is terminated and there is
no negotiation.
 Be prepared for the employee’s reaction.
 Be prepared for the terminated employee to be upset or
argumentative, but do not engage in debate.
 Saying the wrong thing in the heat of the moment could be
costly in a future lawsuit.
 Repeat that the decision has been made with careful
consideration by the city and no amount of talking or arguing
will change the fact.
Discharge –
Guidelines for the Termination Meeting
During the termination meeting (cont.):
 Discuss all issues that need to be “closed”
 Benefits, possible severance, pay out of paid time off (if
applicable) and when to expect final paycheck
 Return of city property – cell phones, laptops, keys
 Provide a copy of the separation notice.
 Conclude termination meetings with a handshake and
genuine sentiment of best wishes, both personally and
professionally.
 Empathy, and professionalism is key when delivering a
termination message.
 Walk employee to the exit of the building.
Discharge –
Guidelines for the Termination Meeting
After the termination meeting:
• Permissions, privileges and email should be
shutoff as the meeting commences or shortly
thereafter.
• Do not allow for long transition periods.
• Based on the situation, a terminated employee
may be asked to leave the offices as soon as
possible and should be escorted.
• If there is a concern about asking the person to
perform “the walk of shame” during business
hours, personal effects can be sent to the
employee’s residence.
Discharge –
Practical Advice / After the Termination
 Post-termination legal proceedings often begin when
dismissed employees feel they were not treated with
respect.
 It is important for employers to respond and consider
requests of a terminated employee seriously.
 Employees may write seeking additional facts and
explanations about their terminations.
 Cities should respond promptly and professionally.
Discharge –
Practical Advice
 Below is a list of common mistakes employers should
avoid:
 Do Not - give employees false hope and say you will help them find a job.
 Do Not - offer to provide a recommendation unless you have considered this in










advance and consistently provide such documentation to separating staff.
Do Not - say, "I'm sure you’re not going to have any trouble..."
Do Not - pass the responsibility of the decision and say this firing was not your idea.
Do Not - give platitudes such as: "It’s probably for the best."
Do Not - say: "I feel really bad about this." No one feels as bad as the employee being
terminated.
Do Not - interrupt, contradict or try to defend yourself or the city. Arguing will only
create resentment and frustration on the part of the employee.
Do Not - assess blame or make apologies. There is no reason to blame the employee
or the city for the termination.
Do Not - apologize, you can express regret that the employment relationship did not
work out, but do not apologize.
Do Not - take responsibility for the failure. You may want to simply express regret
that the opportunity did not work out.
Do Not - offer advice. Listen respectfully.
Do Not - discuss the termination with anyone other than the employee and those
directly involved.
Discharge –
What Now?
 After they are gone
 Break the silence
 It is natural for remaining employees to be concerned about their own
job security and about the treatment of their co-worker.
 It may be easier to just let the situation blow over, however,
silence speaks volumes and you might not like what it has to say.
 Take control of the message by providing communication in a
quick and concise manner



When discussing the termination with current employees, managers
should be brief, general and respectful of the dismissed employee’s
privacy.
This is particularly important in view of the increasing number of
defamation claims brought by terminated employees.
A statement of a termination regarding the employee’s separation date
and well wishes for the future is all that is needed.
 Handling the situation immediately following the termination
allows the healing process to begin for the employees.
Discharge –
What Now?
 Termination based on performance problems
 Usually this is not a surprise (if handled correctly) to other
employees
 Make a generic statement that the person is no longer with
the city
 Discuss action plan to replace as quickly as possible and
who will handle their job duties until that occurs
Discharge –
What Now?
 Termination based on egregious misconduct
 Examples include harassment, theft of city property, or




physical violence
Call a meeting to let employees know that the employee is
no longer with the city
Let them know that you are not at liberty to discuss the
specifics but that the employee was treated with respect,
and that you ask that employees do not engage in hearsay
out of respect for the former employee
Discuss action plan to replace as quickly as possible and
who will handle their job duties until that occurs
Let them know who external inquiries should go to
Discharge –
What Now?
 If this is a reduction in force:
 If possible allow the departing employees to say goodbye.
Allows employees to see that the person was treated with
respect
 Call a meeting with the employees to briefly acknowledge
what has happened
 Focus on the fact that there are no further plans to lay off
 End the meeting with an action plan

Who will handle the responsibilities of the person(s) let go
Documentation,
Discipline &
Discharge
Questions??
[email protected]
859-977-3785

similar documents