HR & Benefits News is a monthly column by Chris Cooley, co-founder of MyHRConcierge and SMB Benefits Advisors.
Making the decision to let an employee go can be difficult at best and can expose grocers to legal action and fines at worst. However, employees that consistently violate policies or underperform are bad for business and the morale of other team members. When it becomes apparent that it is best to let an employee go, independent grocers need to be sure they are following proper protocol to protect themselves from expensive and time-consuming lawsuits.
Has management provided ample warning—does the employee know a termination is possible?
It is imperative that the employee be aware that there is an issue with their behavior or performance. Managers must explain the policy violation or performance issue, outline what the expectation is for improvement, and give the employee a chance to modify their behavior. The organization’s Employee Handbook should have a specific disciplinary plan outlined, including the progressive steps of the reformatory process that lead up to possible termination. An employee should not ever be blindsided by a dismissal. The handbook also should have a statement regarding what qualifies as severe misconduct that would warrant a first-time offense dismissal.
Is there detailed documentation to support the decision to terminate?
There must be an articulated, legally-sound reason to terminate an employee, with thorough paperwork showing documentation of the progressive disciplinary process. A clear timeline of the events leading up to the termination must be included, and the evidence must objectively show that the misconduct was committed by the employee in question.
Another thing to consider is the employee’s recent performance evaluations. If they have received excellent evaluations in the past six months to one year, a court of law might be more likely to question the legitimacy of the termination.
Finally, consider whether or not other employees have been dismissed for a similar reason. No two situations are exactly alike, but if there is evidence that other employees have behaved in a similar manner and not been disciplined or terminated, the dismissal could be questioned.
Can the termination be construed as unlawful?
Be aware of the employment laws in your state and investigate to determine if the employee in question has been involved in any “legally-protected” activities in the recent past. Red flags include:
• A recent complaint by the employee of harassment or unfair treatment;
• A recent complaint by the employee of wrongdoing or a safety issue;
• The employee has recently applied for or returned from military or medical leave;
• Requested accommodations have been recently denied to this employee; and
• Any evidence of discrimination based on age, sex, race, religion, national origin, disability or any other legally protected status.
The terminated employee may or may not have a case because of any of these reasons, but they are free to litigate if they so choose, and any of these reasons may be turned into a pretext for discrimination. Many states in the U.S. subscribe to the “employment-at-will” doctrine, which gives employers the freedom to discharge an employee for any reason not prohibited by law. However, there are federal and state employment laws that prohibit employment-at-will from excusing a wrongful termination suit in a court of law. We encourage our independent grocer clients to tread lightly when any of the activities listed above have taken place recently.
Related articles you may also find helpful:
COBRA: Common Pitfalls
Keys to Success: Hire & Keep the Best People
Stop Unemployment Taxes from Eating Your Profits
Chris Cooley is co-founder of MyHRConcierge and SMB Benefits Advisors. SuperValu’s Retail Accounting team now offers MyHRConcierge HR and compliance services including support for terminating and offboarding employees, COBRA administration and contesting state unemployment insurance claims. MyHRConcierge specializes in helping small to mid-sized grocers throughout the U.S. Chris can be reached at 855-538-6947, ext. 108 or at [email protected].