Termination Best Practices
by J. Wilson Eaton III, Esq.
Discharging an employee is never an easy or risk-free process. However, when an employer believes it is in the employer's best interest to discharge an employee, there are certain legal and practical “best practices” that will assist in reducing the level of risk involved in termination decisions.
A. Legal Considerations
1. Worker Adjustment Retraining Notification Act
If the employer is discharging a group of employees or conducting a plant closing, the Worker Adjustment Retraining and Notification Act (“WARN Act”) may be implicated. The WARN Act requires employers to provide written notice at least 60 calendar days in advance of covered plant closings and mass layoffs, as those terms are defined in the Act. An employer’s notice to the required government agencies assures that assistance can be provided to affected workers, their families, and the appropriate communities through the State Rapid Response Dislocated Worker Unit. The advance notice allows workers and their families transition time to seek alternative jobs or enter skills training programs.
Upon receipt of a WARN notice, the State Rapid Response Dislocated Worker Unit coordinates with the employer to provide on-site information to the workers and employers about employment and retraining services that are designed to help participants find new jobs.
Checklist of Best Practices for Avoiding Wrongful Discharge Claims
- Draft clear and easily applicable employment policies and train managers/supervisors on their application of the policies.
- Make the right hiring decision - spend as much time as needed in the interview process.
- Treat employees fairly.
- Train employees in the art of effective supervision.
- Adhere to company policy (unless you have a very good reason to deviate, and if so, then document).
- Investigate disciplinary matters, be honest, and provide constructive feedback.
- Document, document, document.
- Consider having a second person review the decision to discipline/discharge.
- Restrict communications concerning the discharged employee.
- Set the example by vigorously opposing meritless claims filed by former employees.
