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8 Termination Checklist By Thao Tiedt Ryan, Swanson & Cleveland Before terminating an employee, review this checklist to see if you have your ducks in a row. While employment in Washington is at-will, you cannot terminate an employee for an illegal reason, such as discrimination, or in retaliation for the employee having exercised a legal right, such as reporting a safety violation or filing a workers’ compensation claim. In order to avoid discrimination claims, it is important to be consistent in how you treat employees. If you answer no to a question on the checklist, it does not mean that you should continue employing the employee. However, you may want to consider the matter further or get legal advice. • Is the employee a member of a protected group (minority, pregnant, disabled, etc.)? If so, is the employee being treated the same as members of non-minority groups? • Remember, if the employee is separating due to illness or pregnancy, he or she may be entitled to family leave and it may not truly be a resignation. • Was the rule or policy the employee violated a published rule? How? Where? When? If the violation was not published, is it a serious enough matter that a reasonable person would agree that the employee should be terminated? • Did the employee ever receive a written copy of the policy? For example, in a handbook or employee orientation? Was the rule posted? • Have any other employees violated this rule or policy? If so, did they receive the same disciplinary action? If not, can you articulate a good reason why this employee is receiving harsher discipline? Some good reasons are because this was a repeat violation, the employee being terminated is a supervisor and therefore has to lead by example or that this employee has been troublesome for some time and this is just the last of a long line of issues. • If the decision to terminate is based on poor performance has the employee been given the opportunity to improve? Can you document your coaching sessions with this employee? • How long has the employee been employed? The longer a person has been employed, the more chances a jury thinks the employee should have to improve. • Have alternatives to discharge been considered (change of position, transfer, education)? However, demotions are seldom wise or work out. • Has the employee received warning, verbal or written, previously for violation of this rule? By whom? And was it documented? (All documentation of verbal and written warnings should be retained in the employee’s personnel file) • What was the employee’s prior disciplinary record?
• With whom will the employee be replaced? If the employee being terminated is over 40, is the replacement substantially younger? • Does the documentation in the personnel file support the termination? • Has the final decision to terminate been reviewed by Human Resources or legal counsel (if applicable) to ensure uniformity and consistency of treatment? • What considerations need to be made for compensation, i.e. additional pay for earned time off, 401K or retirement benefits, etc.? • Has payroll been contacted with this decision in order to adequately prepare final compensation? However, in Washington you do not have to give the terminated employee his or her final check at the time of termination. You can issue it on the next regular payday and mail it to the employee. The following are guidelines to follow during your final interview with the employee. First and foremost, cool down. Never discharge an employee without having gathered your wits. You want to have your best professional demeanor. Be sure you have made arrangements for another supervisor or witness to be with you during the termination meeting. • Tell the team member that he or she is being terminated within the first few minutes of the interview; do not drag the meeting out. • Explain the decision briefly and clearly. • Avoid counseling at this point; it should have already been done. • Explain fully the reasons for termination; give the true reasons and all reasons. What you tell the employee at the termination meeting will be what you have to testify to as your reasons if things go wrong. • Allow the employee an opportunity to have his or her say; pay close attention to what is said but do not argue with the team member in an effort to justify the decision. • Close quickly. • Only discuss the details of a termination with those who have a business need to know. Publicizing your feelings about the terminated employee to other employees could later come back to haunt you in a defamation case. □� If the decision to terminate is based on poor performance, has the employee been given the opportunity to improve? Can you document your coaching sessions with this employee? 9
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