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IBA: How To Fire An Employee

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By Mark R. Waterfill

Would you rather get your teeth drilled or fire that problem employee? It is easily the most painful part of the employment process. The case law of employment claims is ripe with horrible stories of terminations gone wrong. The purpose of this article is to set out guidelines which can help to make the tooth drilling process a little easier, both for you and the terminated individual.

Take as much time to fire as you did to hire. The employer who decides to fire someone at 3 pm on Friday is making a terrible mistake. Never fire in a hurry, especially when you are angry. Take your time and plan both the firing decision and the means to do it.

Document performance to support the decision. Hopefully you have good documentation procedures in place already and have given the employee evaluations and warnings that the performance is sub par or that there is some other business reason for the termination.

Always tell the truth. If the termination is not for cause but because of a downsizing, then do not make up other reasons, tell the employee you have to downsize. However, if the reason given is that there is a downsizing, make sure that you are not looking to fill the position in the near future.

Fire the employee for what they admit to have done, not what is speculated to have happened. In almost every for cause termination situation there are facts that the employee admits which are sufficient to justify the action. Use those as the reason for the termination, not what is suspected. For example, the bank teller who admits that she failed to count the money before placing it in the bag will be fired for that and not for theft of the money which she adamantly denies.

Use a team to deliver the news. The team should consist of a person with authority to make the decision and one who can handle the details of the exit. It is often advisable to have a male-female team to handle the matter.

Consider using a termination letter. Indiana law requires a written reason be given for any termination. Moreover, the exit interview can be eased substantially by the use of a termination letter. The letter can set out a general reason for the action, and handle the details of the termination with an increased degree of professionalism.

Handle the money well. Know how much the employee is owed for wages, vacation, commissions, etc. By handing the fired employee an envelope with a check in the appropriate amount at the termination, you will substantially reduce the chances for lawsuit by a disgruntled employee.

Terminate in a neutral site such as a board room or conference room. Besides being more fair to the discharged employ, the neutral site is more flexible than the president’s office. The terminated employee may want to go over every detail of removing each nick nack from the office or go over other details that the company president doesn’t need to remain to discuss. By using the neutral site, these situations can be avoided.

Shut up. Termination interviews can be ruined by poorly stated oral presentations. You have labored over this letter which the employee is trying to read, so let them do so. The best terminations are when the employee reads the letter, shakes your hand and walks out the door, nothing more to be said. Don’t ruin it by talking too much. Also, don’t engage in debate. The decision has been made and there is no reason to continue a discussion on the point.

Consider a severance package. Many employees are looking for a “package” consisting of severance and other benefits. If you are willing to pay more than two weeks’ severance, you should have an employment attorney draft a complete severance and release agreement which complies with the Older Workers Benefit Protection Act. In the long run, you may save a lot of time and money by providing a severance package.

Remind the employee of any obligations to the company. In many states, including Indiana, covenants not to compete are enforceable even against employees who have been fired. Also, many employees know confidential trade secrets belonging to the company and they may not realize the liability they face for misappropriating those. It is good practice to remind employees of their obligations in the terminations letter.

Post-termination considerations. Do not follow all of these suggestions and then screw up the entire matter after the fact. Be aware that post-termination defamation and discrimination claims can be very expensive. Keep the circumstances of the termination confidential and instruct all others to do the same.

Firing an employee is, without question, the hardest part of management. However, by following these guidelines you might find what you thought would be a difficult termination turn-out to be as harmless as a visit to the dentist - with no cavities.•

Mark R. Waterfill is an attorney with the Indianapolis law firm of Benesch/Dann Pecar.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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