Michele Harmon
What are a few critical things that you need to know before hiring or firing an employee? First, avoid hiring people who are not a good fit for the organization. I have had clients that were so quick to hire that they did not read the job application. How do you tell your boss that you just hired someone to work with money that admitted to being recently released from prison for armed robbery and you failed to notice their own admission on the application? I am not making most of this up! Therefore, avoid negligent hiring by running background checks and drug screenings on all your new hires, with their signed permission.
Use a job application and check their professional references—those who are not their family and friends—and consider asking about gaps in time on their application and/or resume. I am not going to advise you on looking them up on social media but I have told my students at UTPB for years, scrub your social media if it might put your ethics and/or behavior in question with a potential future employer. All you will find out about me on my social media accounts is that I have too many animals and that I support public education.
When onboarding, follow the laws of the land and make sure the new employee’s I9 is completed on Day 1 or before, and that does not mean looking at a copy of the driver’s license and social security number that you have for setting up their payroll account. Read the I9 form before you sign your name on it. Make sure you get a signed offer letter from each new employee that states his or her hourly or yearly compensation. If you pay that individual an extra $1.00 an hour by mistake and then want to take the money back, you cannot unless you have a signed offer letter stating their hourly wage. I would think twice if you want to fire them for not informing you that they were overpaid. This stuff really happens all the time.
Protect yourself against a complaint of discriminatory hiring. That means you must keep records of each job you post, along with who applied and who you interviewed. Keep records of interviewee questions and answers. Make up an interview form, use it during the interview, write down what is said, but make sure you do not write anything down on the form that you would not mind on the front page of the newspaper. In other words, it is okay to write, “She said, ‘I have to get high every night to relax,’” but it is not okay to write, “What is that tattoo on her face?” If you are wondering how long to retain these records, you can find your answer on the Texas Workforce Commission (TWC) website.
Do not waste your time telling a new hire they have a 90-day probation period. That is an old wives’ tale. Oops, that sounds sexist, so let’s call it an urban legend. If they pass that 90-day period then they will think they are good to go and have a secure job, come what may. Instead, give them constant feedback about their performance and document it. If they are not working out, then let them go but take responsibility as to whether you have done your very best to help them be a good fit for the organization before firing them. Coaching an employee is a skill that every good manager should have and if you do not, then ask for help. There are some great, executive coaches in the Permian Basin.
If you must terminate (fire/involuntary terminate) an employee, have all your documentation. First, consider giving the employee a chance to address the reason you plan on firing them. Question your reason(s) for firing them and make sure the termination will not be considered wrongful discharge. Consider whether the employee is in a protected class or are you terminating an employee for performing a protective activity? I read somewhere that the difference in terminating an employee for a legal reason versus one that might be considered wrongful termination, is like a bug versus a rock hitting your windshield.
I suggest that you have an employee handbook with a signed employee acknowledgement, a signed job description, a progressive discipline policy, records of verbal warnings, and between one and three written warnings that specifically address your concern(s), the corrective action(s) the employee must take, and a timeline to get it accomplished. Do not send text messages to warn an employee; you need formal documentation, so get that laptop out. A final warning is recommended as well, unless the employee does something that is so atrocious that you cannot have them return or they violated policy, such as your written no call no show policy. My biggest takeaway for you is to implement your policies fairly and equitably. If you have a policy to fire someone for a random drug test failure, then fire everyone that fails. Please do not keep a really great worker and fire the other guy. Make sense?
If you want to avoid an unemployment claim, then stop stressing, because you probably will not. If you fired your employee for misconduct or simply poor performance, you may very well be contributing to their unemployment in the near future. Be careful who you hire to begin with. You reap what you sow. However, if you want to fight an unemployment claim, follow the TWC’s timeline, have all your documentation, and be prepared to have witnesses testify to the employee’s performance and/or misconduct. Don’t misunderstand that having all that documentation will make a hill of beans of difference in the outcome. The burden of proof is on the employer.
Ask yourself before terminating an employee, would that employee know the firing was coming because you gave them verbal and written warnings and clearly explained and documented your expectations? When you fire someone, they should know it is eminent. By the way, an employee can quit and still claim unemployment. Do not forget the Texas Payday Law. If you do fire someone, they must have their final paycheck in their possession or in their bank account by direct deposit no more than six calendar days after the date of termination.
I would assume by now that you have bookmarked the TWC website on your computer and I strongly suggest you go or send your awesome HR professional on your staff to the next TWC presentation in your area. I go at least once a year to virtually the same presentation and learn something new every time. Do not forget to join the national and local SHRM chapters for an endless supply of HR information, sample forms, and a network of HR professionals willing to help.
In closing, sometimes you do have to let an employee go but be kind and try and put yourself in their shoes. It is difficult and humbling to fire someone and it never gets easy. However, There comes a time when you have to stop crossing oceans for people that wouldn’t jump puddles for you. (author unknown)
__________________________
“Your employees are the heart of your organization.” Dr. Michele Harmon is a Human Resource professional, supporting clients in Texas and New Mexico that range in size from five to more than 3,000 employees. She is also President of the Permian Basin Society of Human Resources. Email: micheleharmon1@gmail.com