November 1, 2012

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Letting Go

Practical Advice for Disciplining and Firing Employees

Heather Stewart

November 1, 2012

Firing an employee can be one of the most difficult tasks for entrepreneurs and managers. Not only is a termination fraught with emotion—pity, anger, frustration, sorrow—but the entrepreneur is left with a lurking fear: Am I doing this right? Am I opening the company up to a legal challenge? Have I done everything I could to alter the outcome of this situation?        

Michael Patrick O’Brien, leader of the employment law practice group at Jones Waldo, has some useful advice for handling the delicate task of disciplining and, when necessary, firing employees for poor performance.

1. Start from day one.
“The ideal termination starts the day you hire someone,” says O’Brien. At this point, the new employee should be given a written job description that clearly states the job duties and performance expectations.

2. Touch base often.
Managers should provide regular oversight, training and coaching. By checking in frequently, managers can assess job performance on a continual basis and, hopefully, nip problems in the bud.

3.Conduct annual reviews.
O’Brien says the annual review is a “critical tool” in human resource management. “It’s hard for someone to know how to improve their work if they don’t get any feedback,” he says. The review should include an honest assessment of the employee’s job performance and, if needed, set specific goals for improvement.

4. Address problems immediately.
Resist the urge to avoid dealing with the situation. “If you don’t get involved and work with them, it’s just going to get worse,” says O’Brien. Additional coaching may be the answer—although disciplinary action may be necessary as well. Document all discussions you have with the employee regarding the problem.

5. Escalate the discipline.
If job performance does not improve or serious problems persist, step up the disciplinary measures. These might include written warnings or probation. Again, document the problem, the disciplinary measures taken and the benchmarks for improvement. Continue providing any training or coaching that may help the employee meet expectations.

6. Issue a final warning.
O’Brien says the final written warning should recap the situation, document the steps already taken to address it, lay out a process and timetable for fixing problems and clearly state the consequence of failure to do so—termination of employment.

7. Fire the employee.
If there are further problems or serious mistakes, or the final warning expires without the required performance improvement, it is time to discharge the employee. O’Brien advises managers to make sure there is a definite trigger that leads to termination—not just a vague assertion that the employee has a bad attitude or doesn’t fit in. “Lawsuits often thrive where there are these subjective judgments,” he says. The documentation you have created throughout the process should make it clear that you acted fairly and made every attempt to help the employee improve his or her job performance.

8. Document the termination.
“Document the entire situation,” says O’Brien. Create a discharge letter that briefly and clearly summarizes the steps that led to termination.

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