A few weeks ago I wrote about an employee that stole fuel from the company. Many of you have asked me if I fired the employee. I'll hide behind the blanket statement so many companies and government agencies use: “It's a personnel matter so I can't comment on it.”
That's actually a good policy to follow when speaking about a particular individual who you had to release from employment. Anything you say can and will be used against you in a court of law. Sound familiar? As with any situation that has potential for litigation, the less you say publicly, the better.
There should be no rampant rumors circulating in the company that might defame one’s character. There should not be any discussion of “wrongful termination.” Everything leading up to the termination as well as the act itself should be well-documented and clearly illustrate why termination was the final recourse.
You might think that you can hide behind that “at-will employment” status. However, there are laws that can circumvent that situation and be used to the employee's advantage, specially, with rights afforded under the OSHA Act administered by OSHA. Under the act, employees are protected by more than 20 different statutes when reporting violations of various workplace safety issues involving commercial motor carriers, motor vehicle safety issues and public transportation. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality, or reporting a violation of any of the statutes.
Here are my own recommendations when you must terminate:
- Document performance deficiencies in writing in advance and give the employee a copy.
- Ask the employee to sign an acknowledgement of receipt of each deficiency notice and date it.
- If you must terminate, write a summary of what lead up to the termination including prior notices.
- Have a witness present when you terminate.
- Offer an opportunity to resign if appropriate.
- Take as much time to terminate an employee as you did to hire the employee.
- Advise the employee they are not eligible for rehire.
- When prospective employers call for a reference, simply state that the employee is not eligible for rehire.
I have appealed every single unemployment insurance claim against us and in nearly 25 years with nine claims, not one former employee has won against us. I believe it is because I have always presented excellent documentation to the administrative law judges.
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