Fire away: The right way to get rid of the wrong employee

September 5, 2008

With the increasing risk of costly legal complications, handling employee terminations properly has become more important than ever.

Key Points

It's been a long day. You're ready to wrap things up and go home when your office manager asks to speak with you. "The problem with the new billing clerk is getting worse," she says. "The backlog of submissions is growing, and I still catch her surfing the internet almost every day. I've talked to her three times; I see no other choice than to let her go."

"As managers, we certainly don't take pleasure in the job of letting someone go," says Gabriela Cora, MD, managing partner of the Florida Neuroscience Center in Fort Lauderdale, Florida. "Firing someone is one of the most unpleasant jobs we face, but sometimes it's a responsibility that we have to live up to."

Like many physicians, Cora has had to deal with several employee terminations. In one case, she had to fire a physician for failing to live up to expectations.

"When he was hired, I outlined in specific terms what would be expected of him from both the medical and administrative standpoints," she notes. "When, after the 90-day trial period, it was clear that he wasn't performing as expected, I had to let him go. Fortunately, it was a non-confrontational event. Because we had agreed on clearly outlined requirements, he admitted that he wasn't living up to his end of the bargain. Of course, it doesn't always work out so well. In this case, our preparation prevented a potential conflict."

TREADING ON RISKY LEGAL GROUNDS

You've probably heard about the legal concept known as "wrongful termination," a serious problem for employers that has grown worse in recent years. "When you find yourself faced with the need to discharge an employee, it's important that you keep yourself aware of the legal pitfalls involved," Wozniak says.

Every year, thousands of employers are hauled into court by former employees. According to the Federal Judiciary, more than 18,000 labor cases were filed during the past year alone. Many of these cases result in substantial legal costs or judgments, Wozniak says.

An English Common Law doctrine known as employment-at-will has long been widely recognized in the United States. It means simply that an employer has the right to fire an employee for any reason-or for no reason at all.

That's changing. Many employers in every state are facing costly legal penalties for firing employees without sufficient cause.

"While many states still allow at-will employment, laws vary sharply from one state to another," Wozniak says. "Even at-will employees are entitled to specific legal protections against wrongful termination and cannot be fired for reasons that violate state or federal laws."