Question: I am letting one of my employees go next week. What should I be concerned about during this process?
Answer: It is wise to have a plan in place before discharging an employee. As demonstrated by the recent Twitter “rogue employee” who deactivated President Trump’s Twitter account on the last day of work, a departing worker can create problems for the employer. While there is no foolproof way to protect against potential claims that can arise after an employment termination, you can take steps to minimize the risk to your business, and ensure the process goes as smoothly as possible.
Treat the employee with respect and fairness. Losing one’s job is stressful. Delivering the news is difficult. Although California’s at will employment law permits you to end the employment relationship for no cause, your decision should be based on job performance and/or legitimate, non-discriminatory, non-retaliatory business reasons. Give the employee a fact-based and succinct explanation as to why the employment is ending. Performance based terminations should not be a surprise, and you should have documentation of the performance deficiencies. Except in cases of severe misconduct (i.e. theft, violence), poorly performing employees should receive prior notice of their deficiencies and be given the opportunity to improve performance before the decision is made to discharge them. Except in rare circumstances, terminations should be conducted in a private face-to-face meeting, with two employer representatives, preferably at the end of the work day when fewer co-workers will be nearby.
Make a checklist. California law requires that you give the employee his or her final paycheck at the time of termination. The check must include all wages earned through the date of termination, including accrued but unused vacation or PTO pay. The EDD DE 2320 “For Your Benefit” pamphlet should be provided to the departing employee, together with information concerning COBRA continuation rights. You may want to give the employee a written notice of the termination, but be cautious in the wording. Furthermore, as California and federal laws change, employers may have to provide terminated employees with additional forms and notices so you should regularly update your checklist. You should also confirm the return of all company property. When terminating employees in a mass layoff, specific requirements apply under the Worker Adjustment and Retraining Notification Act (“WARN”).
Discontinue electronic access. Before the termination, work with your IT staff or provider to ensure that all electronic access will be discontinued immediately upon termination. Passwords and privileges must be disabled for company email, programs, and websites, including customer contact forums and social media accounts, as well as voicemail, and building and property access. If the employee worked in a department where employees shared passwords, you should change all passwords. If the employee had IT administration access, this aspect of the termination plan will be more complex and should be approached with care.
Consider timing. Once you have decided to discharge an employee and have all steps in place, you should act promptly. If an employee voluntarily resigns with notice, you may wish to release the employee immediately or before the end of the notice period, especially if there is concern that the employee may go “rogue.” In that case it is wise to pay the employee through the original resignation date. Otherwise you arguably convert a voluntary quit into a termination with unemployment insurance benefits implications.