Hey Compliance Warriors!

In our latest show we talk termination. We go over a checklist so you can make sure you don’t end up with a  court case on your hands for terminating an employee.

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Enjoy and until next time, Be Audit Secure!


Lisa: Welcome back to small business spoonful’s. I’m Lisa Smith

Mason: I’m Mason Merrell.

Lisa: Today we are answering some questions that we have been getting a lot lately.

Mason: Yep. We are talking about termination.

Lisa: Yeah. So, I fear that a lot of people are losing their jobs out there and that’s not funny. But in the last month we’ve had so many emails about I’m going to terminate. What do I do? How do I keep from getting sued?

Mason:  Yeah. We’ve also had a lot of questions before really the person is even working at the place. There’s been a problem, like a drug test showed up after they put the offer in. We had one about jury duty the other day and the person could be gone for and the employer wasn’t sure if they wanted to wait for that long for them to come in. So we had some different things we just wanted to talk about like a termination type checklist. Some questions you can ask yourself in the termination process.

Lisa: Yeah. So we’ve got a top 10 list here and it’s not going to be a silly one like David Letterman used to do, but we’ve got a top 10 set of questions that we’re going to go over with you and give you some ideas of what questions you should be asking. So, grab a pen and paper and jot this down. You can always stop and rewind if you need to. We want you to make sure that you get all these.

Mason: So, what we’ll kind of do here is I will pose the question to you and maybe you can talk about that specific question and we’ll kind of go through these. We’re not going to waste a whole lot of time on them. We don’t want to make an hour-long podcast that we probably could make on this topic, but just kind of some overviews, some things to think about. So, we’ll start just here with number one. Was there a specific incident close in time of the discharge?

Lisa:  Yeah, that’s an important question to ask because this specific incident could be the reason that the person’s getting terminated and you want to make sure that that’s fully documented, that your side of the story is correct and true. Don’t just tickle your own ears and make it sound good for your documentation purposes. Really review it with an unbiased eye if you can, but then also there could be a specific incident that would cause you to get sued for terminating.


Mason:  So you’ve got to really find that out and ask those questions to yourself to try to figure out who is in the right on this situation.

Lisa: Exactly.

Mason: The next question is, can the employer show that the employee violated a known policy or law?

Lisa: So, this kind of goes back to the specific incident bat. It leans itself now really hard into can you prove it. So, what you say means absolutely nothing unless you’ve got proof.

Mason: Yup. Proof is in the pudding. So next one, are witnesses available? This is a very important one.

Lisa: So now witnesses, now are we talking about are witnesses to the incident or the violation available? That’s important, but also witnesses to the termination. So you don’t want to just go in alone with the person you’re terminating because then it’s your word against theirs. You know, we need to have other people looped in and we’ve had a lot of questions recently about terminating via email and text message. That’s not illegal. It’s not advised, but it’s not illegal in most states in most circumstances I should say. That being said, you do have a document showing what you said and what they said, it still might be helpful to loop in a third or fourth party because anybody can alter emails.

Mason: Yeah and if you are going to fire that way, a good thing might be to just do a group chat and prove that everybody’s on that chat with everybody’s phones. The person you’re terminating, yourself and another witness into the chat. If that’s the way you want to do things, which are obviously, like you said, not really advised, but not against the law.

Lisa: Right Yeah.

Mason: Okay, the next question here is number four: Does the employer have documentation to support its reasons for termination?

Lisa: So, there we go back to the incident, proving your work, witnesses. You’ll notice a lot of these 10 questions, they play into each other, but it’s because it’s so important. If we just ask the question one way, you’ll forget about all the other factors or I will, I don’t know about you, but I will. So, it’s good that this top 10 list encompasses all of this information.

Mason: Yeah, that’s correct. So, number five: Did the employee progress all the way through the disciplinary system? Do you have a disciplinary system in place?

Lisa: That’s a better question to ask right there before you can even get to this question. So, I’m hoping that everyone has this, you know, sometimes we call it discipline. Sometimes we call it corrective action, whatever it is. Okay, fine. It’s all the same thing. Are we documenting our steps? We had the discussion, we had the write up, we had the right up again we maybe suspended them. We did this, we did that. Now we’re at the point where there’s nothing left to do except fire them.  So do we have that in place? If we don’t have a formal process in place and we just decided to start it for you, well now it’s: Why am I just starting it with you? Because I don’t like you because you’re not the right ethnic origin?  Like I don’t know. You know, those are the things that are going to be thrown back at you. So make sure you are good to go on all levels.

Mason: Yup. That’s right. Okay, so this next point has an A, B and C questions too when it comes to discrimination issues. So first does the employee belong to a protected minority?

Lisa: Okay. So very important. So, everybody pretty much is in some sort of protected class, but the protected minorities of course women and people of any sort of heritage that is nonwhite. We want to definitely ask that question.

Mason: So the next question is: Was the treatment given to the employee different from that given to non-minority minorities?

Lisa: Exactly. That’s self-explanatory. When we ask these questions don’t get defensive. Don’t say: “No. I treat everybody that way!” Like no, really? Think about it with an honest eye.

Mason: It maybe an unwittingly thing that you don’t even think about. Like you’re trying to be nicer to this person because they are a minority. But in turn you’re actually being racist because you’re showing that person special treatment.

Lisa: Absolutely.

Mason: So the question C: Was the treatment given to the employee different from that given to other workers in general?

Lisa: Right. So regardless of protected class, let’s just say you have two white men under 40 and nobody has a disability. So, they’re generally not that protected at that point, right?  So, did you treat both of them the same? It just boils down to treating everyone the same.

Mason: Yep. Great Point. Okay, so number eight, those were the three points under number point number seven, which is the discrimination issue. So, number eight, we’re going to talk about a different kind of level, which is: Was the employee involved under a protected activity? This is kind of something that I didn’t really think about when thinking about this, but it’s an important thing. So, the first one is involvement in a claim over wages, workers compensation or discrimination.

Lisa: Yeah, absolutely. So, if someone has got a claim and against you something like this, firing them is not the best thing to do. Cause that’s considered retaliation.

Mason: Yep, so question B, this is what we’ve talked about a little bit earlier and we had that question about this week: Jury or military duty.

Lisa: Both are protected activities in every state in the union. So, no states are going to get by with this, but ask yourself that question. Somebody gone for jury duty for three weeks and you’re really getting sick of this, you can’t fire them. If you do need to fire them during a protected activity, it goes back to, see questions one, two, three, four and five. You have to be able to prove the reason that you’re firing them is not related to a protected activity.

Mason: That’s right. So, the next point would be refusal to commit in illegal act.

Lisa:  Right. So like for example, “Hey, I want you to doctor the books for me and hide the payroll taxes. If you don’t do it, I’m going to fire you. Okay?”

Mason: Another point would be voting.

Lisa: Yeah, absolutely. It’s a protected activity.

Mason: Inquiring about the legality of an instruction from theemployer.

Lisa: So, the employer says, “You know, I want you to start classifying everyone as overtime exempt, put them on salary. That way we don’t have to pay the overtime thing.”  And you were like, “Yeah, I don’t think everybody qualifies.” Boss says: “Do it anyway!” Then pretty soon you’re like looking up information, you’re bringing it to big boss saying, “Hey, I think that some of these people don’t qualify.” Then suddenly you’re terminated. That’s exactly the kind of stuff that happens. It’s pretty crazy.

Mason: So, whistleblowing?

Lisa: Yeah, of course. If you’ve got a whistle blowing situation going on, you’re not getting terminated right now, so make sure you’re not trying to terminate someone in that circumstance.

Mason: Okay. So point number nine, those were kind of the, all the points under number eight which were protected activity. Point number nine in the case of a simple lay off, is the company using neutral business related criteria not related to any minority characteristics to evaluate the affected department and select those who will be laid off?

Lisa: This is one of those things that sometimes people do unwittingly as well. There have been many cases throughout the years of situations where the criteria used to select those who would be laid off effected largely one minority class of individuals. So, like maybe we’re going to do a layoff. We’ve got a cut our payroll by 10%. So, we’re going to do this major layoff. I think that we can probably spare a bunch of day laborers. Okay, so that’s largely going to affect, let’s just throw it out there, a population of Hispanic or Latino people. Right? So, let’s just say that, or maybe it’s a population of Navajo out in, Arizona or, you know, but this is largely where you’re pulling those workers from. Now those people are largely the ones getting laid off. We’re going to have to rethink the formula that we put together to reduce the payroll for layoffs because that’s affecting a huge class of individualsand even if you don’t mean that, it to looks like discrimination and we can’t go down that road.

Mason: Yeah. Okay. Well that’s some great information on that. That can be kind of a touchy subject, especially to find out and deal with. So, our 10th and final point, depending on the answers to these questions, the employer may need to seek legal advice prior to taking any adverse job action against the affected employee.

Lisa: Yeah. So that’s not really a question. That’s just a good solid number 10 statement. Because you know, I tell people all the time, they say, well can I do this, and can I do that? Sometimes the answer is very clear and sometimes the answer is you’re going to have to have legal advice on that because you need the backup of an attorney if this turned sour on you.

Mason: Yeah, exactly. So basically, if you can’t get point nine without there being a problem, you’re probably going to have to seek legal advice.

Lisa: Exactly and sometimes you’re going to be in the middle of legal advice to some of these points. The keys here are making sure you check all these boxes.

Mason: I was just thinking a while ago, like as if I was the employer, I would print this checklist and put it as a poster on the wall. You know, cause you’re always going to run into problems with an employee and you’re going to be like, “man, it would just be easy if I could just get rid of them.”

Lisa: Yeah, I know, that’s why I was like: Sit down, write this down, type this out. Laminate it, put it on your wall, do whatever you want to do, but these are ten very important points.

Mason: Yeah, next to the cat poster that says: “you got it!”(Laughs)

Lisa: Exactly.

Mason: All right. So that was a pretty quick, easy episode. How do you want to handle this checklist? Do you want to give it out to our, to our listeners?

Lisa: I guess we could, now that they’ve all written it down, but I know some of you didn’t. (Laughs)

Mason: Okay so, we’ll put it on our helpdesksuites.com/podcast page. If you’re already a member, there’s a button in there that says: “Already a member.” You can log in and then you can download it for free right there. Otherwise sign up and we’ll send that to you via email.?

Lisa: Sounds good to me.

Mason: Okay, great! Well until next time I’m Mason Merrell…

Lisa: and I’m Lisa Smith, be audit secure!

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