Michele Harmon
Deep Dive: People are your most expensive line item. How do you save money? Pay attention to turnover rates. This month we address critical issues to keep in mind when hiring and firing staff.
Is anyone an At-Will employee?
Can you fire an employee just because?
Is it the right thing to do to provide some due process to your employees before throwing them out the door?
Is anyone an At-Will employee? The short answer is, it depends. An employee can be legally fired for a lawful reason. However, you may not terminate anyone at any time for an illegal reason, and these include:
- Medical conditions
- Genetic information
- Marital status
- Religion
- Race, color, national origin
- Employee age, if the employee is over 40
- Military or veteran status
- Gender, sex, gender identity, gender expression, sexual orientation
- Physical or mental disability
Currently, the burden of proof in Texas for proving discrimination is on the employee.
However, it is more difficult for an employer to defend themselves for:
Firing in retaliation for being a whistleblower
Retaliation against an employee filing or reporting a complaint about a violation of the law. Usually, this includes:
Health and safety violations
Unpaid wages
Labor law violations
Discrimination and harassment
Political beliefs or affiliations of the employee
Dismissal of an employee who was a victim of a crime. [But] the employee must appear in court as a witness to that crime.
Dismissal of an employee who needed or needs time off permitted by federal law, such as the Family Medical Leave Act (FMLA).
Violating the WARN Act (Worker Adjustment and Retraining Notification), which requires employers to give sufficient notice before mass layoffs.
The terminated employee is or was a victim of sexual assault, stalking, or domestic violence. They must miss work to get a restraining or protective order.
Terminating an employee for a reason against public policy, such as terminating an employee for refusing to do something illegal.
Firing because the employee filed a worker’s compensation claim.
Firing an employee for not speaking English and the employer did not clearly state that it is necessary to speak English for the particular position the employee accepted. An example of this is working as a cook. The employee needs to know how to say fire in English or read a recipe in English.
Constructive termination occurs when an employer fails to address working conditions that are so intolerable or unsafe that an employee is all but forced to quit.
COVID concerns have added another layer to current and future litigation.
Can you fire someone for poor performance? What about the 90-day probation period?
Yes, you can fire someone for poor performance, but if the employer hires carefully and coaches new employees, you will seldom fire new employees for poor performance.
Did I add check references and not the potential employee’s friends?
Is a 90-day probationary period a legal timeframe that allows employers to fire a new employee at the end of the timeframe? Not exactly.
A 90-day probationary period is out-of-date thinking. The health law allows employers the right to make new employees wait up to 90 days to start their insurance coverage. Having an employee wait up to 90 days for benefits is a practice that will probably cost the employer the best employees. Who can wait that long or pay the COBRA cost from their previous employer? The best employers start new employees on benefits and automatically enroll them into their 401K on the first day of the following <<<<<< Michele – first day of what? >>>>>>>
If the employee makes it to Day 91, is the new employee thinking they are safe and can lessen their performance? Your new hire should never believe that their job is secure on Day 91 and forward.
Keep your employment practices simple. Have an established coaching plan for new employees and expect excellent performance from Day One and Day 500.
Lastly, does an employer need to provide some due process before terminating an employee in Texas? If you are a Texas government employee, yes. Suppose you are a private employer—then not necessarily. However, it is the right thing to do. I have watched an owner fire an employee without allowing them any due process.
If an employer is going to fire someone, review the circumstances carefully with Human Resources (HR). Then, after careful consideration, have the supervisor conduct the termination meeting and then invite the employee to go to HR. Exit termination paperwork, as well as an exit survey, save future headaches. Failing a drug test is an easy termination. You will probably not have to offer COBRA benefits because being on an illegal drug may be considered gross misconduct. However, if the employee is a poor performer, do your due diligence, meet with HR, and make sure HR has an employee exit checklist ready. If you have a robust Human Resource Information System (HRIS), you also can push out exit surveys to your terminated employees. Feedback is not only good for the employee; it is good for the employer.
____________________________________________________________________________________________________
“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. Email: micheleharmon1@gmail.com