As is the tradition, there were several NFL head coach terminations on “Black Monday” – the day following the end of the regular professional football season. None of these terminations were a surprise. NFL head coaches understand that winning a lot of football games is a job expectation and losing too many games is a terminable offense.
Give Fair and Timely Feedback
Outside of sports, however, the criteria used by employers to evaluate job performance is seldom as objective as wins v. losses. Nonetheless, terminations based on performance should never be a surprise. Employees should know what their roles are, what is expected of them, whether they are meeting the employer’s expectations, and what the consequences will be if they fail to meet such expectations. Conducting honest and fair performance evaluations and communicating with employees about their performance throughout the year, are important steps to effectively manage employee performance.
If, however, performance problems necessitate a termination of employment, employers must carefully consider numerous business and legal issues. Below is a termination checklist that will help ensure compliance and a more seamless transition.
- Determine whether the employee is employed at-will or is employed under an employment agreement. If there is an employment agreement, make sure that the termination is consistent with the terms. Check for severance provisions, which typically are triggered if the termination is without cause.
- Gather and review any additional agreements or documents that set forth the rights and obligations of the employer and employee. These may include offer letters, manuals and handbooks, covenant agreements, stock agreements, partnership and operating agreements and benefit plans.
- Review state final payment rules. Some states require payment of a terminated employee’s final paycheck immediately or within a certain timeframe.
- Analyze potential litigation risks. Is the employee in a protected class? Did the employee engage in any protected activity? Did the employee recently take a medical leave of absence or return from a medical leave of absence? Did the employer treat similarly situated employees the same?
- Gather documents that support the termination decision.
- Consider offering severance payments in exchange for signing a release of claims.
- Prepare for the termination meeting. Plan the timing and location of the termination meeting, draft a script of what will be said, and gather any relevant documentation to provide the employee, such as separation notices required by state unemployment agencies, copies of employment agreements that have post-termination obligations including employee covenant agreements, benefit information, outplacement services, and the separation agreement, if applicable.
- Consider and evaluate safety/security risks. Determine whether security personnel will be needed.
- Disable the employee’s physical and electronic access to the worksite and the employer’s electronic information.
- Require the return of all company property and information. Ask the terminated employee pointed questions about whether any information exists on an external drive or personal electronic device of the employee.
- Secure and preserve all electronic equipment. Do not recirculate the equipment until you are confident that the employee did not use the equipment to steal data or engage in misconduct.
- Decide whether the employee will be able to collect any personal belongings from the worksite or if the employer will collect and return them.
- Document the termination meeting.
- Convey the termination decision to others on an as-needed basis. Avoid making negative comments about the employee to others outside the organization.