Terminating an employee is a difficult ordeal for all involved. For the employer, there is the added confusion of potential legal liabilities resulting from the action.
“Absent a collective bargaining agreement or contract, most employees in the state, including professionals and hourly employees, are employed at-will,” says Rich Millisor, partner in the firm of Millisor & Nobil. “What that means is that the employer has the right to terminate with or without cause at any time for any reason, so long as the reason is not unlawful.”
To avoiding the unlawful reasons, it’s best to document the legitimate reasons an employee is being fired and give him or her a chance to fix the problems.
“What we recommend is that the employer be able to show a legitimate nondiscriminatory business reason for the decision,” says Millisor. “If you can show that, and the employee can’t show otherwise, then there is no discrimination.”
Legitimate reasons vary, according to Paul Morrison, also a partner with Millisor & Nobil, but include things such as excessive absenteeism, poor performance and dishonesty.
“It really comes down to proving a legitimate business reason,” says Morrison. “If you provide some level of notice and the employee hasn’t corrected the problem, then you are in a much better position.”
Millisor says that having a poor attitude is a legitimate reason for termination, but again, it is best if the employee is given a chance to correct it before firing him or her.
Other recommendations include:
* Have a company handbook that clearly outlines the expectations for the work force.
“A good handbook reinforces the at-will nature of the relationship and puts employees on notice of what’s expected of them,” says Millisor.
* Define in the handbook specifics on termination, such as what happens to vacation days.
In Ohio, an employee has no right to vacation time upon termination.
“The employer ought to have a clear policy indicating that vacation days will not be paid on termination,” says Millisor. “The absence of such a policy may give employees a claim for them.”
* Give notice to the troublesome employee of the problems.
“We recommend employers give notice of the deficiency both verbally and in writing, and outline what needs to be done to correct the problems,” says Morrison.
* Avoid the common mistake of tolerating poor performance without documenting it.
“Employers get to the end of the line, then want to make a decision without documenting the deficiency and providing the employee an opportunity to correct it,” says Millisor. “In today’s legal climate, we believe it is a good business practice and makes abundant business sense to take a proactive approach before making an employment decision to terminate.”
* Handle it with class.
“How you terminate is almost as important as why,” says Millisor. “An employer who is not careful in effectuating the termination may run the risk of throwing fuel on the fire in terms of someone filing a claim. You should be doing the termination face-to-face, and you should be treating the employee with honesty and dignity in making the decision.”
* Know the exceptions.
Not every situation requires documentation. In the case of theft, acts of dishonesty, intimidation, drug use or harassment, termination can be immediate — but the safest route is to consult your attorney first. How to reach: Millisor & Nobil, (216) 838-8800 or www.millisor.com
