Terminating an Employee: Best Practices for a Bad Situation


Six months ago you hired an employee. He shows up to work late more often than not. He’s always calling in sick, but never provides a medical explanation. When he is at work, he seems more devoted to updating his Facebook page than improving your company’s bottom line. He looked good on paper when you brought him on, but today, he’s just not working out.

You’ve always prided yourself on doing right by your employees. You try to make your office collegial and a fun place to work. Your employee handbook is tailored to your business and thorough. You have company policies that prohibit inappropriate discrimination of any kind and you take them seriously.

But this dude is something else. He’s a nice enough guy, but he isn’t engaged in the business of helping your business. You wish you had never hired him. But you did.

So what do you do?

The Best Way to Fire an Employee

Firing an employee isn’t fun, but it’s sometimes necessary.

Colorado, like most states, is an at-will employment state. This is a legal doctrine that provides that in the absence of a contract to the contrary, neither an employer nor an employee is required to give notice or advance notice of termination or resignation.

Still, it’s good corporate karma to notify an employee that his work has not matched your expectations and give him the opportunity to cure. Similarly, it’s good corporate practice to provide regular employee reviews. Ideally, you should give your employees one formal review every year and a number of informal reviews.

Providing these formal and informal reviews is an important part of establishing fair policies that will stand up to challenges of bias or discrimination. While Colorado and most other states have “at-will” employment default policies, there are many carve-outs to these policies. These exceptions include age, race, gender, medical issues, and family leave. Should an employee lose a job (or not get a job or a promotion), it must be clear that the employment action took place because of job performance-related reasons, and not anything to do with membership in a protected class.

Unemployment Insurance

In Colorado, and in many other states, employees are entitled to unemployment insurance unless they were guilty of “gross misconduct.” Gross misconduct in this context means:

[c]onduct evincing such willful or wanton disregard of an employer’s interests or negligence or harm of such a degree or recurrence as to manifest culpability or wrongful intent, or assault or threatened assault upon supervisors, coworkers, or others at the work site.

That’s a pretty high hurdle to overcome. For most employers, you are better off simply firing the employee and not challenging the unemployment claim. Yes, your insurance premiums will likely increase as a result. Unless the former employee engaged in seriously inappropriate behavior, challenging the claim could lead to negative feelings and possibly a lawsuit. Even if the claim has no merit, it will be a lot less expensive to pay the premium than a defense attorney.

Photo cred: ModDb

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