1. NO SURPRISES. When you sit your employee down to tell them that their services are no longer required, they should have a really good idea of what’s coming. If they don’t, you haven’t done your job. Nobody likes to be surprised. Especially when that surprise cuts off their paycheck. If you have an employee who has been performing poorly, it is, and let me be clear about this, NOT COOL if the first they hear about their under-performance is accompanied by a box and a security guard.
2. Is this the right reaction? If an employee has made a bad choice for the right reasons, in a position where they were expected to make that call, do you really want to fire them for doing what you asked them to do? For example, when several key personnel are out sick, a manager fails to allow employees to take legally required breaks. The manager did this because stopping production would have had disastrous consequences for fulfilling orders, and would have hurt profitability. Should that manager have taken that particular action? In hindsight, it’s likely that a different action could have been taken, but should you fire them for making this decision? Probably not. Use it as a “teaching moment” and help them become a better manager.
3. Did you just give a glowing review of this employee? Did you just tell them that their presence in the office made the sun shine and the birds sing? Then it’s a safe bet that having them walk the plank will catch them off guard. Firing someone for poor performance should really be backed up by a couple of performance reviews that highlight the alleged deficient work standard.
4. Did they really use up their last chance? While you don’t have to give an employee a “last chance,” if you have given other employees a similar opportunity you should be giving one to the employee you’re about to drop through the trap door.
5. Is there a procedure for this? Do you have a set of human resources standards that ensure every employee can expect a particular escalation of disciplinary actions before being fired? If you do, did you follow them? Following your own procedures, if you have them, is incredibly important, especially when those procedures are available to your employees.
6. Are you being consistent? Has the discipline been administered consistently, regardless of protected class? If you find yourself having a little extra sympathy for your wheelchair-bound employee, that’s understandable. Or is it getting too much to accommodate the drama that the single mom in your team brings to work? If you don’t make the same allowances for every employee, you might find yourself in a tight spot. Remember, you’re looking at employee performance regardless of race, sexuality, gender, disability, familial status, religion, age, national origin, color, or veteran status. Treating two employees differently, based on whether or not they belong to a protected class, is illegal. You can, and probably will, be sued for it.
There are steps you can take to reduce your exposure to litigation, and they’re fairly straight-forward.
1. Have a company-wide policy which outlines the disciplinary process. Use it.
2. Conduct regular performance reviews to let employees know they’re doing well, or that there are parts of their performance that need to be improved.
3. If an employee is performing poorly, or does something in breach of a company policy, have a disciplinary process that makes the employee aware of this problem, and gives the employee an opportunity to correct the behavior within a specified time frame.
4. Be consistent. Do not use a protected class status to modify either your praise or discipline.
5. Communicate that you have disciplinary policies, and that they apply to everyone. Communicate with your employees about their performance, or their progress in a performance improvement plan.
6. Document everything. Having a written record of the steps you took and the opportunities you gave to the employee to correct their errant behavior will help defend you if you get sued.