Running a business is all about making difficult decisions, but perhaps the most difficult task is terminating a problematic employee. However, one of the most unfortunate parts of terminating an employee is the fact that if you go about it the wrong way or for the wrong reasons, it can leave your business open to an expensive lawsuit. If you have one or more problematic employees that need to be let go, but you also want to protect your business from potential legal action, then consider the following.
Terminate for Legitimate Reasons
As Ohio is an “at-will” state, both and employee and an employer can end employment at any time without cause. However, it is still best to have a cause in order to protect yourself from a potential wrongful termination lawsuit. Employees are protected from being terminated because of discrimination against age, race, and gender. Furthermore, you cannot terminate an employee for retaliatory action. (For example, if they filed for worker’s compensation or engaged in whistle-blowing against the company.) Finally, if the employee has a contract, you’ll need to make sure termination isn’t in violation of that contract’s terms.
Keep Performance Records
As mentioned above, it is best to keep reasons for terminating an employee legitimate. To protect yourself from any employee saying it was retaliation, keep both positive and negative performance records for each employee. This paper trial can help protect you if any legal action does present itself after termination. This is often very helpful in incidents that look like retaliation; but in reality, it was the final straw of bad behavior by the employee.
Prepare For Termination
The term “at-will” may seem like very little preparation is needed for terminating an employee that you have been monitoring. However, this is how businesses open themselves up to wrongful termination suits. Before firing an employee, your first step is to gather the evidence on why you want to fire the employee. This should be kept in case of any legal action, but it should be talked over with human resources, if available, to make sure it is in fact a valid reason. Afterwards, you should prep for the termination process itself. When terminating an employee, consider the following:
Plan out the details
When will they clean out their desk? What is their last day? When will they get their last paycheck? You should consider all details before termination so you can concisely lay them out for the employee. You don’t want a termination meeting to drag on while you figure all this out while they’re sitting there crushed.
Terminate in private
Publicly shaming an employee in front of colleagues by firing them is not a professional move and it could turn into a lawsuit. Choose a neutral space and do it behind closed doors instead of an area where you may be overheard or even interrupted by something like a phone ringing.
Bring a witness
When terminating an employee who may claim retaliation, or even just in general to protect your business, it is best to have a witness in the room. Your human resources representative is the best option, but even someone such as their supervisor can sit in as witness to vouch that it was valid and done professionally. Furthermore, these witnesses can attest to poor work performance as a cause as well.
While all the above can help protect you from a wrongful termination lawsuit, that doesn’t mean that employees won’t still try. It just means that their legal action is more likely to fail. If your business is the target of a potentially expensive lawsuit in Ohio, contact us today to see how Dungan & LeFevre can help you.
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