On a regular basis, I have a conversation with a CEO around employment at will. They have an employee who is not performing and when I tell them they need to start documentation they always respond with the same question. “But we employ at will right? So I can fire anytime.”
In technical terms, sure. You can fire at will. In legal terms, employment at will doesn’t defend you from a lawsuit. Even if the lawsuit is bogus, it certainly won’t protect you from the cost to defend the suit. Courts may still side with an employee if they feel they were discriminated against because of any protected class or if they were harassed, even in an employment at will situation.
But Sabrina, what about probationary periods?
Sorry to say that those don’t really mean anything. Probationary periods started as a milestone for new hires to receive certain benefits, like healthcare or 401(k). Make it past your 90 days and we’ll give you this or that type of deal. While they were adapted to say that either party could terminate employment within the first 90 days with or without cause, the previous paragraph still applies. Just because you terminate within a probationary period does not mean you are not susceptible to potential litigation.
So what is an employer to do? Well allow me to beat my drum for a moment while I sing you the song I sing to clients every single day.
Have a hiring process in place and follow it consistently. Think about the characteristics that are necessary to be successful in this job and ask the right questions to find out if the candidate in front of you possesses them.
Often times the interview process is rushed, or there is no real process and poor decisions are made resulting in performance that is less than stellar rather quickly. Regardless of how quickly this shows up, documentation is key to supporting a termination.
Document, Document, Document
I know operational leaders get sick of hearing this from their HR team, but the reality is documentation is key to mitigating any legal risk. After my post last week about email, a conversation on Twitter started about how email can be used in legal cases. That isn’t to suggest that we use email as a way to document performance, but it is to say that lawyers and courts love documentation.
Any performance issue should be well documented especially if they lead to termination. Unfortunately, there is just no getting around it.
Check Your Leadership
I don’t want to say bad employees are caused by bad leaders, but sometimes, bad employees are caused by bad leaders. It could be that the manager has high and unreasonable expectations or that they are just a bear to work for. There have been a number of times in my career where seemingly high quality employees turn into performance issues and sometimes it has stemmed from a poor leader.
We are often quick to defend our leaders, but it is at least an important point to check.
So while most are “at will” employers, firing at will doesn’t come without it’s risks. No termination process is 100% risk free from litigation but following the steps above (especially point number 2) can help mitigate that risk and make sure your termination process is as succinct and maybe more importantly, humane as possible.