1. How to Conduct Employee Terminations With Confidence
Firing Without Fear
How to Conduct Employee Terminations With Confidence
Presented By:
Jean Harrington, Esq. and Gregory Tumolo, Esq.

2. Introduction
Many employers allow fear of litigation to dictate performance management decisions
There is a strong business case for terminating problem employees—if it is done correctly
Substandard performance, attendance problems, violation of company policies and procedures, and misconduct negatively affect
Recruitment and retention efforts
Morale
Productivity

3. Types of Terminations Voluntary Termination Involuntary Termination
Employee initiates the termination of the employment relationship
Reasons for voluntary termination
New job
Personal reasons (e.g. health, family obligations, relocation)
Retirement
Employer initiates the termination of the employment relationship
Reasons for involuntary termination
Unsatisfactory performance
Misconduct
Organizational changes (e.g. layoffs, reductions in force)

4. Employment At-Will Rhode Island is an at-will employment state
The employer or the employee may terminate the employment relationship
At any time
For any reason not prohibited by law
With or without notice
Exceptions
Oral or written employment contract (e.g. termination must be “for cause” or upon specified notice)
Termination violates clearly established public policy
Claims for wrongful discharge in violation of public policy arise when an employee is discharged because he or she refused to do something unlawful. They also arise when the employee is discharged for performing basic responsibilities of a citizen (e.g. jury duty).

5. Federal Limits on the At-Will Employment Doctrine
Title VII of the Civil Rights Act of 1964
Fifteen or more employees
Race, color, religion, sex, or national origin
Americans with Disabilities Act (ADA)
Qualified disabled persons
Age Discrimination in Employment Act (ADEA)
Twenty or more employees
Employees at least 40-years old and older
Family and Medical Leave Act (FMLA)
Fifty or more employees
Employee exercising right to job-protected leave under FMLA
As mentioned previously, the employment at-will doctrine allows for termination of the employment relationship for any reason not prohibited by law.
Since the 1960s, a “patchwork quilt” of federal, state, and local laws has emerged limiting the right of employers to terminate certain employees in legally protected classes.

6. State Limits on the At-Will Employment Doctrine
Fair Employment Practices Act (FEPA)
Four or more employees
Title VII classes plus sexual orientation, gender identity/expression, disability, age
Rhode Island Civil Rights Act (RICRA)
All employers regardless of size
Race, color, religion, sex, disability, age, country of ancestral origin
Individual liability
Civil Rights of People with Disabilities Act
Qualified disabled persons
Rhode Island Whistleblowers’ Protection Act
Employees who report violation or potential violation, participate in investigation, or refuse to violate law
The at-will doctrine is also limited at the state level. In Rhode Island, state law often provides for broader protection by applying to more employers and more protected classes.

7. The Importance of Performance Reviews and Progressive Discipline
Periodic performance reviews and documentation of progressive discipline are essential to minimize legal risk for employee terminations
Typically, a progressive discipline policy will include some or all of the following stages:
Coaching and counseling
Verbal warning
Written warning(s) and/or performance improvement plan (PIP)
Final written warning
Termination
If progressive discipline is consistently applied (i.e. similarly-situated employees are treated similarly) and appropriately documented, then
Termination decision will not come as a surprise to the employee
Employer will have evidence of a legitimate, non-discriminatory reason(s) for decision
Courts in Rhode Island repeatedly have held that a lack of documentation of poor performance may support an inference that the employer did not actually believe that the employee was performing poorly prior to the termination
If an employee is disciplined for violating a company policy, make sure that the employee was provided with a copy of the policy.

8. Best Practices for Documentation
Effective documentation is:
Contemporaneous
Focused on objective, observable measures of performance
Avoids subjective characterizations of human behavior
At a minimum, your documentation should include the following details:
The date, time, and location of a particular incident or conversation
The details of any conversation with the employee
The employment policies and procedures violated
Any coaching or counseling provided to the employee
Any disciplinary action imposed

9. Planning for the Termination Discussion
Review documentation generated through progressive discipline
Consult with legal counsel, if appropriate
Arrange to have the meeting in person
Select the time and place for the meeting
Arrange to have a manager or HR professional present as a witness
Arrange to have the employee’s physical, electronic, and financial access terminated in advance
Arrange to have security present if the termination will pose a safety risk
Plan in advance who is going to speak and what that person will say

10. During the Termination Discussion
Keep it short—no more than fifteen minutes
Essential topics to cover
That a decision has been made to terminate employment
The reason(s) and key facts supporting the termination decision
The effective date of separation
A review of the employee’s separation package, if any
A review of the employer’s policy and procedures for handling employment references
A review of post-termination legal obligations (e.g. non-competition, confidentiality)
What will happen following the meeting (e.g. cleaning out workspace, return of company property, exit interview)
Whom to contact for post-termination issues
Treat the employee with dignity and respect
If you decide to provide the employee with the reason or reasons for the termination decision—and there is no obligation for you to do so—make sure that you provide the real reason and that that reason is appropriately documented.

11. Following the Termination Discussion
Be prepared for post-termination interactions with
The terminated employee
The terminated employee’s colleagues
Government agencies
Requests for employment references must be handled with care to avoid legal liability
Understand your obligations regarding access to employee personnel files
Discharged employees should be treated respectfully in post-termination communications.
Co-workers affected by the employee’s departure should be provided with a clear, concise, and general explanation that the employee is no longer with the company.
Employees need to know who will be handling the former employee’s job duties and responsibilities.
Negative employment reference could give rise to liability for defamation and intentional interference with contract.

12. Questions?