How to Protect Yourself Legally When Firing Someone
In today's society, businesses have to be more careful than ever when firing an employee. Because of new laws regarding termination, there are more steps and paperwork required in firing a person. In addition to new laws, many angry former employees will not hesitate to bring a wrongful termination suit to court. For these reasons, employers must learn the best way to fire someone and to protect themselves legally in the process.
The process of firing someone begins long before the actual firing is done. The employee that is to be let go should be given adequate warning. The warnings should be both verbal and written and the employee should be well aware of these warnings. All warnings should be documented and signed by the employee, demonstrating that he/she is aware of the reasons for censure. If the employee won't sign the warning because he/she finds the warning without reason or feels that the warning is too severe, a third party must sign it to show that the employee was given the opportunity.
The key to the pre-firing process is documentation. All investigations and warnings must be well documented. If in the event of a wrongful termination suit, a company with proper documentation of investigation and warnings will be able to build a strong case for why the person was fired. If the documentation is not on paper, it is extremely difficult to prove that the termination was warranted. Without a solid case, with a documented foundation for firing, a company will most likely have to pay the costly legal damages.
There are some factors to consider before firing someone because of the legal problems that could arise. One factor is to take into consideration is that someone who has worked for the company a long time is much more likely to sue, due to bad feelings and even a hope for revenge. How long someone has worked for a company is something that a judge or jury will most likely take into consideration.
One way to avoid this situation is to not procrastinate a termination - in a situation where a long-time employee is to be fired, the person in question probably should have been fired much sooner. Because the company waited, they may face some difficulty should the person sue. It is much better to fire someone when they are relatively new. If a newer employee is not meeting standards, give adequate warnings, and if the standards are still not met, the employee should be let go.
Once the necessary protocol warning the employee has been done and the only resolution is termination, the employer can do a few things to ensure legal protection. It is a good idea to involve a third party in the meeting as a witness, preferably someone from the Human Relations Department. Having a witness of the proceedings can be huge asset should the released employee file suit.
In the termination meeting, documentation is essential. Everything said regarding reasons for firing, severance, etc. should be written in a termination letter. It is important to keep the meeting brief and to follow what the termination letter says.
Firing someone can be a very emotionally charged situation - the person being fired can react in a variety of ways. In some cases, the separated employee may react angrily. Do not argue with the employee - arguments create bad feelings that could make the employee more likely to sue. Do not accuse the employee of anything not outlined in the termination letter - such accusations could be used in a suit as defamation.
On the other end of the emotional reactions that could arise when someone is fired is that the person is upset, possibly to the point of tears. A manager should never give false reasons for termination to save the employee's feelings. Also, managers should not promise help in finding a new job or giving a reference. By making such promises, managers open themselves to possible legal troubles.
Firing someone is not something most managers enjoy doing, but it, unfortunately, has to be done. Managers should realize that firing is a skill that must be learned and that when it is done correctly can minimize bad feelings and reduce legal risks.
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