As with layoffs, it is recommended to consult with a legal advisor during an employee termination. The following steps can be taken to begin preparing for mediation.
1. Document Poor Performance and Offenses.
The best way to track an employee’s progress or regression is to record their performance or offense throughout their tenure with the company. Sometimes this can be tricky because the frequency question needs to be answered first. Is this behavior a one-time occurrence or has it become a trend? Written documentation can be used as evidence of poor performance or misconduct, as opposed to a non-discriminatory reason.
An employer usually does not need to issue an official letter of termination of an individual’s employment, but it is advisable to document the termination in writing, including the reasons for termination. In the US, the EEOC Regulations require that all personnel/employment records be kept on file for at least one year.
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2. Consider employment laws and legal protections.
Prior to termination, the employer must analyze the company’s policies and the specific contractual obligations with an individual employee, if applicable. Federal, State, and local laws/regulations must be observed, especially if the employee is a member of a Union, which may limit or guide the termination, due to the collective bargaining agreements.
This analysis will help determine the legal obligations and maintain regulatory compliance within the termination process.
3. Prepare for termination.
Establish a standard procedure for how the company terminates an employee. It is highly recommended to hold this mediation meeting in a private office or conference room. Do not hold this discussion in a public area. It is best to have two employer representatives in attendance (e.g., one HR representative and one hiring manager). Prepare what each member wants to say at the meeting and make any legal documents or notices available to provide to the employee, such as a termination of employment letter.
A termination letter or sometimes called a “closing” letter usually contains information about the effective termination date, the reason for the termination, information regarding unemployment benefits or severance pay (if applicable), and health coverage continuation, such as COBRA details.
4. Discuss the Termination with the employee.
Discuss the termination process in a respectful and professional manner, using clear and concise language. Provide them with the termination letter and all of the applicable supporting documentation. Collect their company property, give them their final paycheck (including earned or unused vacation or sick pay), and remind them of any legal obligations such as non-disclosure agreements. Finally, wish them well in their future endeavors.
