Can I fire this employee? That is a question I frequently get, and my answer is always the same. “Certainly; New York is an employment at will state. But…” It’s the “but” I want to address in this blog.
But, don’t assume that just because you fire someone by exercising your right to, that you are off the hook for discrimination, unfair labor practice, or any other charges that the employee may file because they think their rights have been violated, or they think they were fired due to retaliation for something they did (such as file a disability claim, or complaint).
Employees have the right to file complaints and charges, and employers have the obligation to respond. But employers can minimize the probability of a charge being filed in the first place, and can limit the liability if a charge is filed. The first thing to remember is to be fair. Is it fair to fire an employee without telling them in advance that their actions and/or performance need to improve in order for them to keep their jobs? In almost every case, it is not fair. One exception would be that if they committed an act egregious enough to be considered misconduct, and thus it would warrant immediate termination.
You owe it to the employee, and to your company, to make sure you have given them every opportunity to improve whatever it is that needs improvement, and that you have documented doing so. Documentation has to tell a complete story.
When you document something, consider the following?
- Have you provided a complete description of the incident(s) including dates?
- Have you clearly communicated (reasonable) expectations?
- Can those expectations be enforced objectively?
- Have you given obvious notice that the behavior or performance is unacceptable?
- Has the employee been given a reasonable opportunity to improve?
- Have you offered to assist the employee in achieving whatever it is you asked them to do?
- If it was a policy violation, have you identified the policy or standard that was violated?
- Is it documented somewhere that the employee knew about that policy or standard?
- Have you recapped any previous counseling or discipline that has been administered?
- Have you clearly communicated the negative effects of the continued behavior or performance?
- Have you stated future expectations? Are they reasonable? AND does the employee understand them?
- Have you stated when those future expectations need to be met by?
- Have you clearly stated the consequences of failure to improve? and/or the consequences of additional violations?
- Have you told the employee you will follow-up and what date that will be done?
- Is the documentation is dated?
- Does it have the employee's first and last name?
- Does it clearly show who it is from/who the author is?
Remember....not documented, not done.