Termination explanations in "at will" employment states

[Condo Guard]

I'm curious how managers handle terminations in "at will" states like Washington. Simply put, without an employment contract, a co. can fire you at any time, for any reason or no reason. (Conversely, you can quit anytime and you can't be "punished" as long as you turned in your uniforms, didn't walk off in the middle of a shift, etc.)

All my previous managers have said not to say much - just give a basic reason and move on. The only exception is if we know we are going to ask unemployment to deny your claim, then we have to be specific (i.e. "ten people saw you smoking meth before plowing the company car into the fence and you failed your drug test after...").

I agree that if the employee is being fired, it isn't a performance review - explaining every infraction is just going to lead to an hour discussion of why it wasn't their fault, the company / supervisor / shift lead is picking on them, etc. Any thoughts?

[Curtis Baillie]

Not entirely accurate. Most wrongful termination actions in "at will" states are due to violation of federal statutory anti-discrimination laws such as race, color, religion, sex, national origin, age, or handicap status. Others include refusing to commit criminal acts, family or medical leave and leave and a company not following their own termination policies.

Then there's the currently many states (35+ I think) that have "implied contract" statutes - Meaning even though there many not be a written contract between employer and employee, there very may be an implied contract.

[SecTrainer]

I'm curious how managers handle terminations in "at will" states like Washington. Simply put, without an employment contract, a co. can fire you at any time, for any reason or no reason. (Conversely, you can quit anytime and you can't be "punished" as long as you turned in your uniforms, didn't walk off in the middle of a shift, etc.)

All my previous managers have said not to say much - just give a basic reason and move on. The only exception is if we know we are going to ask unemployment to deny your claim, then we have to be specific (i.e. "ten people saw you smoking meth before plowing the company car into the fence and you failed your drug test after...").

I agree that if the employee is being fired, it isn't a performance review - explaining every infraction is just going to lead to an hour discussion of why it wasn't their fault, the company / supervisor / shift lead is picking on them, etc. Any thoughts?

This is one of those multifaceted problems, because whatever "reason" you give the employee, if it comes down to an unemployment hearing or a wrongful termination action you're going to have to explain to an administrative officer or a court exactly why you really did fire the employee.

At-will or not, if in fact you're terminating this employee "for cause" (e.g., failure to meet job performance standards), and not for "business reasons" (e.g., the position is being eliminated), what will be most important in the event of a legal or administrative action is what procedures you followed BEFORE you terminated the employee - meaning, what formal corrective actions that you took AND DOCUMENTED.

Typically, companies have policies that impose on themselves a sequence of "progressive discipline" actions - such as verbal warning (but still documented), written warning, suspension and finally termination - except, of course, in cases where immediate termination is obviously justified and/or necessary (e.g., unauthorized weapon, theft from the site, threatening a supervisor).

In addition, if there are certain behaviors that result in automatic termination (e.g., falsifying time card, unexcused failure to report for duty for two consecutive shifts, sleeping on duty, etc.), it will be important that you have provided all employees with WRITTEN policies to that effect - usually when they are hired and immediately whenever any new policy is enacted. The employee must sign a copy of such policies, which should be placed in their personnel file.

Terminating an employee represents a failure of some kind on both sides - the company and the employee. It's a drastic step that costs the company considerable money, exposes the company to liability, and should be considered very carefully - especially asking "Have we really done what we can to bring this employee into compliance? Is the situation really hopeless?" - and of course making sure that you have treated the employee with scrupulous honor and fairness.

You can give the employee a generic excuse: "I'm sorry, Bob, but we just don't feel that this is a good fit for you or for the company." But "vanilla" explanations like that won't work when you're actually called upon to give the real reason for the termination. If or when that time comes, the one thing that will be working in your favor is that you:

1. Have disciplinary policies that are specifically intended to bring employees into compliance with expectations - and which give them the opportunity to correct the problem.

2. Documented the disciplinary actions that you've taken.

3. Documented that, despite these efforts, the employee did not correct his behavior and/or improve his performance.

4. Provided the employee with written copies of relevant policies, performance standards, etc.

If, after all of this, you find it necessary to terminate an employee, you aren't required to engage in an "hour-long" discussion with him about the termination, and the chances are much less likely that this will arise. He already knows why he's being fired, and he's been given enough time to rectify the problem. Most of the argument will be gone out of him. Simply bring him into the office, tell him directly and briefly that he's being terminated for failure to correct the problems that you and he have already thoroughly explored and discussed, and if he argues, simply say, "Bob, we've been over all this before, and our decision is final. If you'd care to make a written statement and have it placed into your personnel file, I'll be happy to do that. You can mail it to me here, and I'll make sure it gets into your file."

It's not firing employees that's the problem when it comes to wrongful terminations, etc. It's what goes on long before the termination. Failure to have clear written policies and standards. Failure to follow a stepwise disciplinary process that gives the employee an opportunity to correct the problems, etc. It's not "what you tell them when you fire them" that gets companies into trouble. If you can show that all employees are made aware of your expectations (in writing), that this employee failed to meet those expectations (documented as to how he failed to do so), that you warned him about this and gave him an opportunity to correct the problem (documented), and that he still failed to do so (again, documented), you will vastly reduce your company's liability in any subsequent action that might arise.

In some cases, it might also be important to show that the employee received adequate training in order to be able to meet certain performance expectations. For instance, if he's required to use a particular piece of software, be able to show that he was trained on the use of the software. This is another issue, though.

[SecTrainer]

A bit more about written warnings. The best written warnings include a statement of the noncompliance, with specific examples, the "warning" itself (the possibility of termination if the behavior is not corrected), an "action plan" that the employee is to follow, and a future date when the issue will be reviewed again.

For instance, if the issue is tardiness.

__________________________
WRITTEN NOTICE OF FAILURE TO COMPLY WITH COMPANY REGULATIONS AND/OR POLICIES

DATE: 01/11/2013

EMPLOYEE: Robert Harker
EMPLOYEE NUMBER: 08-164
SUPERVISOR: Iva Biggun

COMPLIANCE ISSUE: TARDINESS IN REPORTING FOR DUTY

Bob has failed to report for duty on time for four out of the last 14 days:
01/02/2013: Fifteen minutes late.
01/04/2013: Eleven minutes late.
01/05/2013: Ten minutes late.
01/08/2013: Twelve minutes late.

Company policies, and our contractual obligations to our clients, require that employees report for duty by no later than five minutes prior to the start of their assigned shifts. These policies have been reviewed with Bob, and he indicates that he understands this expectation.

Continued failure to comply with this requirement will result in further disciplinary action, up to and including termination. This has been specifically explained to Bob, who stated that he understands that further tardiness will not be tolerated.

ACTION PLAN: Bob will report for duty as expected, and will specifically notify the shift supervisor each time he reports for duty. We will meet again on 01/30/2013 to review his compliance with this action plan.

This written warning is to be signed by the supervisor and the employee, who will receive a copy. A copy will also be filed in the employee's personnel file.


(Dated and signed by supervisor)

I agree that this document fairly represents the warning and explanations that I have been given, and I understand the actions that I am required to take in order to comply with company policies and expectations. I understand that failure to do so will result in further disciplinary action, up to and including termination. I also understand that a copy of this warning will be placed in my personnel file.

(Signed by employee)

__________________________

Obviously, this document will shape the interview in which Bob is given this warning. You will tell him why you are meeting, you will cite the examples of tardiness, you will review the policy that Bob is violating, and you will get a statement from him that he understands this policy*. You will explain that further violations will not be tolerated and can result in disciplinary actions up to and including termination - and again you will have Bob state that he understands this. Then you will explain the "Action Plan", and get his statement that he understands what he is to do according to this plan, and that you will meet again on 1/30 for the review. At the end of the interview, having made sure you do cover all of these things, you will sign it, he will sign it, and the appropriate copies are distributed to him and to his personnel file.

*When I say "states that he understands...", I'm not saying that you should say: "Bob, you will now please state that you understand this." You would get such statements by asking natural questions like: "Have I made this clear to you, Bob?" or "Do you have any questions about what I've told you?" etc. If he does ask questions, answer them, and then repeat, "Are you clear on this now?" until he says "Yes" or words to that effect. If he says "No" when you ask "Do you have any questions...", it's the same thing as saying that he understands. The point is, get feedback from Bob that clearly indicates to you that Bob isn't confused in any way about the nature of the problem, the policies that he's violating, the corrective actions that he must take, or what might happen next if he doesn't shape up.

The action plan review is then the best opportunity to either give the employee a "get out of jail" card if he has corrected his behavior, congratulating him on his renewed efforts to become a good employee - or if he hasn't done as asked, to either suspend or terminate him if that is what you're going to do. Either way, of course, the review is also documented and signed by both. If you're going to terminate him during this interview, do the review portion that documents ongoing failure to conform, and get his signature on it before you tell him that termination is the action being taken, and you won't find that he has much fight left in him. He's been warned and told he could be fired. He signed that. He failed to comply, and he signed the review documenting that. What's left to say?).

Documents like this (the warning and the followup review) can do wonders to bring about employee conformance with expectations. It says "We're serious about this". But when the review shows that the employee fails to correct his behavior, it has another purpose altogether. The review - and the prior warning document - will then support his termination.

When you can walk into court, or into an administrative hearing, with documentation such as this, you've put your company in the best possible position to disprove employee allegations and to prevail in the final decision. You've demonstrated fairness in dealing with him, and you've demonstrated that he knew full well what the problems were that led to his termination with ample opportunity provided for him to save his own job - if he had chosen to do so. In fact, having such documentation can derail a host of legal threats before they even leave the station.

Some employers think, "Boy, this is an awful lot of bother" - but how much "bother" does it take to earn the thousands of dollars in penalties, back pay, etc. that your company might have to cough up?

Besides - companies generally find that they discipline most people for a fairly small set of common reasons, and you can "boilerplate" a lot of this documentation, leaving only the blanks necessary for the specific employee, the examples, the date for review, etc. One for tardiness, one for no-shows, one for insubordination, one for failure to perform assigned duties, etc. Work up one for each of the five or ten most common reasons for disciplining and terminating employees, and you won't find that this is all that much extra work. And besides, it gives you the best opportunity to head off the expense and the liability of terminating employees in the first place - and that should really be your goal anyway.

When you reach the point - and it should be RELUCTANTLY, WITH DELIBERATION - of terminating an employee, he's not the only one who has failed. YOU HAVE FAILED TOO. As such, it wouldn't be a bad idea to do a little "self-warning-and-review", especially if you find yourself terminating employees with more regularity than common sense indicates should be the case. Something is wrong with your hiring process, with your orientation or training process, with your supervisory practices, your policies, or something - and you need to find out what it is.

[zm88]

I keep very detailed records as well as memos attatched explaining why i chose to further investigate the officer as well as my planned follow up actions. A second memo is included after detailing the conversation i have with my boss and the final course of action as well. Document everything, im going through a denail with former staff right now and its a PITA to deal with.


That said, my company utilizes a disciplinary matrix along witha counseling form that the employee either signs or refuses. Always have a witness with you during one of those to CYA. As for simy firing a person to fire them, i have.only seen that twice at USSA. Usually out here you'll find your hours.cut first, then assigned to a site X miles away from the office that you cant reach or wouldnt be worth it forcing you to quit.

[SecTrainer]

I keep very detailed records as well as memos attatched explaining why i chose to further investigate the officer as well as my planned follow up actions. A second memo is included after detailing the conversation i have with my boss and the final course of action as well. Document everything, im going through a denail with former staff right now and its a PITA to deal with.


That said, my company utilizes a disciplinary matrix along witha counseling form that the employee either signs or refuses. Always have a witness with you during one of those to CYA. As for simy firing a person to fire them, i have.only seen that twice at USSA. Usually out here you'll find your hours.cut first, then assigned to a site X miles away from the office that you cant reach or wouldnt be worth it forcing you to quit.

The practices that you describe can get a company into deep water. It's called "constructive termination" to place an employee under conditions where he has no choice but to quit. The courts will find that you have effectively terminated the employee - and those are exactly the kinds of "firings" that a company will lose every time when it comes to a wrongful termination suit.

Tell your company to wise up and start behaving in an ethical manner.

[Squid]

I'm pretty sure you can't be "punished" for walking off in the middle of a shift.

There ability to "punish" is limited to not paying your extra severance pay (extra pay if you DO give 'proper' notice).

You can even work against their direct orders and they still must pay you if they didn't fire you prior.

That really happens quite often in high rise construction where a limited number of temp elevators will malfunction but you still got lotta guys all with big tool boxes needing to come down, etc.

[zm88]

ST il clarify i havent.seen that at my company ,again.it.was.at another.contract company.

[SecTrainer]

ST il clarify i havent.seen that at my company ,again.it.was.at another.contract company.

Sorry I missed that, ZM. The point still holds. This is unethical conduct toward employees, it will be interpreted by the courts as a "constructive termination", and it will get the company that does such things into hot water sooner or later. It's an old, old trick and it doesn't fool anyone.

[SecTrainer]

I'm pretty sure you can't be "punished" for walking off in the middle of a shift.

There ability to "punish" is limited to not paying your extra severance pay (extra pay if you DO give 'proper' notice).

You can even work against their direct orders and they still must pay you if they didn't fire you prior.

That really happens quite often in high rise construction where a limited number of temp elevators will malfunction but you still got lotta guys all with big tool boxes needing to come down, etc.

Ummm...they can "punish" you for walking off the job for the rest of your life. A reference like that could mean that someone doesn't work in security again ever.

[Squid]

Unless you are being arrested, most big companies or even smaller "good" companies will never "terminate" anyone, they always "lay off" people for "lack of work", for legal and other reasons.

Sure, it costs a tiny bit in excess EDD tax you don't get back, but overall the practice is a "winner".

The time saved by management alone more than makes up for any small expense.

[zm88]

Where do you get your 'facts' ?


Sleeping on the job, annual crimminal check turns something up, blatant violations of company policy,destruction/theft of company/client property are all reasons one can be terminated. None unless with solid evidence could warrant an arrest but are solid reasons for a termination

[Squid]

Sure they are 'solid reasons', HOWEVER they are all able to be disputed, which win-lose-or draw costs the company big money, headaches and 'loss of face'.

At least 1/2 of any such dispute will drag the client into it and make company look bad. Do you want client finding out Bubba is claiming it is 'unfair' to fire him for sleeping because he says 4 out of 9 of other guards "do it all the time"?


The reason the smart thing to do is "lay off" people is currently it remains the company's sole discretion as to how many workers they need to do a certain job and the "lay off" is much more protected from EEC lawsuits and other 2nd guessing.

You aren't accusing anyone of anything, except 'accusing' yourself for not landing more 'work'.

All goes back to 'dealing with difficult people'.(standard guard training in CA).

The idea is to get them 'off post' with supposedly a possibility of being re-hired (if they "act professionally" and don't do anything to hurt the company image when being "laid off" of course).


When your client asks why Bubba ain't there any more and Spider is at his post do you want to say Bubba was caught smoking dope or do you want to say Spider is a more senior employee coming form a site that is winding down, so Bubba got 'laid off'?



PS-Guess why Santa Clara County Sheriff Deputy Cooper claimed he "Must have fallen asleep" after he killed those two bike riders at 10am on a twisty road after being spotted hotrodding up and down same road?

Because science doesn't have anyway to prove if you were or weren't sleeping a few moments before, or if you were just 'resting your eyes'.

[Condo Guard]

lay off vs. termination

I would prefer "laying off," but the problem in our state is the lay off has to be real, i.e. the position has to be eliminated, not just the person filling it. My supervisor used to "lay off" guys who weren't necessarily bad but just didn't do well in a particular position or shift, when there was nothing available to transfer them to. The suits told him to quit doing that and just terminate.

I agree with ST's and others recommendation to document, document, document. It doesn't solve the problem of what I would call a "grey guard" - a guy that isn't terrible, but is lacking in the position he's in. I'll give an extreme fictional example here - take a guy who's a big fan of dirty jokes. Can't stop himself, always telling them. He's fine at the truck depot or at the shipyard, where the guys are used to it and that's the accepted "culture." Are you really going to put this guy in an office setting where the workforce is 90% women? So what you do with him if that's the only position for him? (And don't say, 'counsel him and give him a chance...' - he's not going to change, and you can't risk the contract.)

[SecTrainer]

I would prefer "laying off," but the problem in our state is the lay off has to be real, i.e. the position has to be eliminated, not just the person filling it. My supervisor used to "lay off" guys who weren't necessarily bad but just didn't do well in a particular position or shift, when there was nothing available to transfer them to. The suits told him to quit doing that and just terminate.

They said to stop this phony-layoff practice because it's just another "constructive termination" situation - no different from a phony reassignment - i.e., assigning an employee to a post 2 hours away that you know he won't take.

If an employee is "laid off" and can then show that you hired other people without calling him back (especially if they are of approximately equal or lesser qualifications), you've got a wrongful termination problem. And if he can show that you have a pattern of doing this, you really have a problem.

Bottom line: Man up and deal with people straight up - with documentation. It's simply the best way to do business.