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At Will Employment: You are fired

At-Will? Not So Fast!

Doesn't it feel great that you operate in an at-will state that allows you to terminate employment at any time for any reason? Well, before you get too comfortable you should know that this is true only in rare situations. And, it doesn't matter whether it's in the first 90 days of employment or other probationary period.

No Reason Is Not Enough

"Why can't I make a business decision to fire someone that isn't a good fit for our company?" you may ask. Here are a few reasons:

  • Decisions without proper documentation and remediation can fall into discrimination by treating protected classes unfairly and/or can be seen as retaliation.

  • Unemployment agencies look at "for cause" to determine whether to pay benefits. If you don't show good cause, you will pay.

  • If an EEOC complaint is filed, jurors are made up of regular people and most people don't agree with employment at-will and expect an employer to go through progressive discipline.

  • Your employee brand could suffer (potential applicants don't want to apply to companies who fire willy nilly).

Give the Best Chance for Success

"Fine! Then, what am I supposed to do? Keep employees that aren't working out?" you say. Not at all, but you do need to give each person the best chance for success. Here is what we suggest:

  • Clear expectations: Create job descriptions with quantifiable goals;

  • Clear benchmarks: Train employees and make goals clear;

  • Supervision: Provide management support to obtain goals.

Positive Separation

"I did all that! It's just not a good fit," you share with frustration. Someone doesn't work out - it happens for a variety of reasons. Here is what we suggest:

  • Documentation: If performance or behavior is not where it needs to be, address it right away;

  • Verbal warning (with desk notes in the file)

  • Written warning (ask the employee to sign)

  • Suspension without pay

  • Termination (this may be the first step if the situation is serious)

  • Professional support: Call Advisor HR for professional support to fix the employee issue and/or prepare for a proper termination;

  • Be Supportive: Help the person transition to a job/company that brings out their best self. Make connections and offer suggestions. Say "thank you" for their efforts. You never know, down the road with a new skill set they may be your best new hire. And, they may refer talented people to your respectful, positive work place!

P.S. Read this SHRM article for more information

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