Should Termination Be A Group Decision?

Even if you’re sure termination is the best course of action, it’s generally better to let a group make the final decision. Why?

First of all, other managers, HR, and legal advisors may be in a better position to determine the most appropriate action because they are familiar with actions taken before in similar circumstances, they know organization policy and how it is typically applied, and they are familiar with the legal threats terminations bring.

In addition, if the termination should ever be questioned in court, a group decision shows careful consideration—a reasoned and businesslike approach.

Finally, because litigation often takes place years after the fact, it’s best to have several managers familiar with the particulars of a situation.

Your team should also consider whether termination is the best solution or whether there are less drastic alternatives. If a lawsuit develops, as an element of fairness, the jury will want to know whether you considered suspension or some other less drastic measure.

A suspension is a dramatic gesture that unmistakably tells the employee that the problems are serious. Generally, if there is a repeat of the problem, the employee is fired.

Note that you must be careful with exempt employees and unpaid suspensions. Always have managers check with the HR department before imposing these.

Some employers pay the worker during the suspension and stress the employee’s empowerment in making decisions related to his or her future. This approach is often called a “decision leave.”

The complete guide to terminations in California. Learn more.

Another alternative to consider is allowing the employee to “resign.” Sometimes, this solution is win-win. It allows the employee to preserve dignity and move into a job search without the stigma of having been fired. And it allows the employer to reduce (not eliminate, unfortunately) the likelihood of a lawsuit, especially if the employee is required to sign a release.

In most situations, it is possible for the employee to resign and still collect unemployment, and many employers allow this.

One additional alternative to consider is reassignment. Might the employee make a worthwhile contribution in another position?

In making a final decision, the team should take into account the following factors:

• The severity of the offense;
• How clearly the offense is delineated by policy and practice;
• How solid the evidence against the person is;
• How long the employee has worked for the organization;
• What the employee’s work record shows;
• How employees committing the same or similar offenses have been treated in the past;
• The likelihood of a lawsuit;
• Whether the employee falls into a protected category and what the employer’s record has been in hiring and firing others in that category;
• Whether the person has engaged in protected behavior such as taking FMLA leave or whistleblowing; and
• What the reasonable alternatives are.

You have probably invested a lot in the employee. The employee may have valuable contacts that you don’t want to lose. The employee may have specialized knowledge that you cannot easily replace. You and coworkers will endure a period of extra work and confusion while a new person is hired and trained. So consider the business impact of the termination.

Of course, one final alternative is to do nothing, in the hope that the person will “take a hint” and leave. That’s wishful thinking. And when you don’t act, you are tolerating the poor behavior and eventually condoning and accepting it.

So … if an alternative to termination seems to be the best solution, choose the alternative. But if termination comes out as the best solution, take action.

Terminations: A Complete Guide for California Employers

Whether it’s a termination, “decision leave,” constructive discharge, layoff, or forced resignation, ending an employment relationship is a legal minefield that you should navigate only after careful consideration and adequate preparation.

Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can significantly impact how you must treat employees before letting them go.

Don’t make a move without checking out our brand-new reference manual, written specifically for California employers.

Terminations: A Complete Guide for California Employers covers everything you need to know about both voluntary and involuntary separations, including:

• Lawful vs. unlawful employee terminations;
• Employee discipline;
• The importance of documentation;
• How to create a paper trail that protects you in the event of litigation or threatened litigation;
• A step-by-step process for investigating alleged workplace misconduct;
• Termination considerations for all situations: poor performance, misconduct, personality issues, insubordination, tardiness, and absenteeism;
• Special pretermination considerations to keep in mind for employees on leave, unionized employees, and more;
• The state and federal rules on mass layoffs and RIFs;
• What to do when an employee resigns—and when a departure might be considered a constructive discharge;
• Important termination and resignation documentation you must keep on file;
• Payroll considerations for departing employees: final paycheck rules and more;
• Tips for effective termination meetings and exit interviews that both provide you with needed information and help keep you out of legal trouble;
• Legal do’s and don’ts for giving references;
• Employee rights to unemployment benefits in California;
• How to protect your company from termination-related lawsuits;
• And much more!

It’s like having a California employment lawyer on call, working on your most pressing termination questions and concerns, at a fraction of the cost!

Best of all, we’ll send you a brand-new edition each year so you always have the most up-to-date policies available. Don’t delay—order today, and make sure your termination processes are in order, before you get sued.

Download your copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!