Managers want to terminate employment of a poor performer without doing the hard work first. Employees should be provided a chance to improve and necessary feedback. Managers need to coach and help to set goals. Employees do not always know what is expected of them and managers should not assume that an employee knows he is doing a poor job. If an employee does something incorrectly, there should be specific feedback.
Of course, all this needs to be documented. Documentation needs to be factual, not riddled with opinions. If managers do not document the performance issues and the employee denies it, a jury could decide that the meeting did not happen. And employees will deny the conversations and meeting. Documentation should have the date (including year), the author, and facts about the meeting and who was in attendance. It should be written contemporaneously with the event, not weeks or months later.
Job evaluations are a great tool when used and done well. Many managers dread the evaluation process and simply rate most employees as average and recommend a raise despite if it is earned. An evaluation of someone’s performance needs to be honest feedback. If an employee is not meeting expectations, it is only fair to communicate that along with goals to improve. Monthly performance or coaching meetings are very worthwhile to keep employees on track.
If after coaching and counseling, the performance does not improve, termination may be in order. An employee should never be surprised at a termination for poor job performance. Timing of the termination is crucial. If the employee has recently filed a worker’s compensation claim, FMLA leave, a harassment complaint, etc., the employer may want to wait to take action. Proximity in time to a protected activity and termination can be enough for the employee to get the claim to a jury trial.
The termination meeting should be attended by the manager and a representative from Human Resources, if possible. At least two company representatives should be present with one person responsible for documenting the meeting. A written letter of termination is advisable so there is no question about the basis for the termination. I highly advocate for providing the reason for termination of employment. Employees want to know why and that is a reasonable request for someone losing their job. At some point, the company will have to disclose the reasons why whether it is responding to an unemployment claim, EEOC charge or defending a lawsuit. Whatever the reason(s) given at the termination meeting, it cannot change.
It is also advisable to let an employee clean out his/her own desk to avoid claims of theft or conversion for missing property. A company representative can be present if necessary. If the termination occurs when other workers are present, the company can set up a time to meet with the employee later for personal belongings. Of course, if the company believes the employee is dangerous, doing it immediately during work hours is best.
A severance agreement should be considered when the termination is for poor performance. This is particularly true if the employee is long-term. The agreement should be written in compliance with the Age Discrimination in Employment Act and Older Worker’s Benefit Protection Act. If the employee has any type of contract or non-compete agreement, the terms must be followed and carefully considered.
There is no guarantee of preventing a lawsuit, EEOC or other type of claim. However, companies want to put themselves in the best position to defend claims when necessary.
Suggested steps:
- Conduct honest evaluations of performance.
- Communicate performance issues timely.
- Set goals with the employee to achieve success.
- Properly document any coaching or counseling.
- Follow policies and contracts in counseling or termination.
- Be wary of any claims of retaliation-timing is key.
- Provide a reason for the termination and be consistent.
- Have two representatives present at term meeting.
- Allow employee to clean out own desk.
- Consider a severance agreement.
