How to fire or layoff when employment is at will

February 11, 2009

Before starting down the path of job termination, (Employee Misconduct)

What lawyers don't want you to know about at will employment.

Before starting down the path of job termination, consider the following: This is why it's so hard to dismiss an employee based on "at will" alone. A warning e-mail before the discipline meeting or no meeting at all could make you look insensitive and unfair. I recommend you send a hard copy of the lay off documents (layoff notification, separation document, COBRA notice, final paycheck and severance check) to the jobholder's home address by certified mail, return-receipt requested. Attach any relevant company policy and phone numbers the jobholder will need to call if there are any questions. First, if you're terminating the worker for an wrongful reason (for example, because she's a Muslim) or because of a stupid reason (for example, she started dating someone you don't like), then PLEASE DON'T put your reason down on paper.

Here are some other alternatives: If the jobholder is a poor performer, you must put the jobholder into escalating discipline and give him a chance to increase. In particular, follow-up when the employee gives you important information which could help the firm in a improper separation suit. In other words, start recording what you tell the employee. As Dr Franco Gandolfini notes, 60-70% of your workforce will be indifferent, 10-15% will be openly hostile or subtly try to sabotage the changes to show management it has been ineffective. In the employee reprimand you must state what the expected performance is and what the consequences will be should the worker fail to meet it. If the behavior remains poor, then it's time for formal progressive discipline that will likely lead to the difficult employee's dismissal. For example, the boss may think the employee has some insights into the department's declining esprit de corps and can aid you devise a question to get this information. It decides whether you win the lawsuit or end up spending tons of money and rehiring this individual. Sacking a jobholder is a delicate task and your letter is an essential part of that difficult procedure.

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What lawyers don't want you to know about at will employment.