• Human Resources Series Part IV of IV: Terminating An Employee
  • September 7, 2016 | Author: Joanne P Rinardo
  • Law Firm: Deutsch Kerrigan LLP - New Orleans Office
  • Employee performance issues should be addressed as soon as possible. However, if you decide an employee must be let go, the following can provide guidance. Before terminating a staff employee, there are several questions you must consider to protect you and your practice from possible litigation:

    DOES THE EMPLOYEE HAVE AN EMPLOYMENT CONTRACT OR IS HE/SHE AT-WILL?
    Louisiana is an "at-will" employment state. So, unless you have an employment contract with the employee for a specific term, you may fire him/her with or without cause, with or without notice. If you have an employment contract with the employee, you will need to review the contract to determine under what circumstances you can terminate him/her and/or whether you must provide notice. Consult with an attorney about your rights.

    IS THE EMPLOYEE IN ANY PROTECTED CLASS?
    You can terminate an at-will employee for any legal reason. However, you cannot terminate an employee for an illegal reason such as membership in a protected class (assuming you have at least 15 or more employees). If you do not have 15 or more employees, you are exempt from most state and federal laws that protect certain employees. Protected status can be based upon age, gender, race, nationality, religion, color, and/or physical or mental disability. For example, you may not terminate an employee who told you she is pregnant simply because you fear she will miss too much work. Also, you cannot terminate an employee because he/she filed a Worker's Compensation claim or in retaliation for complaining about perceived discrimination toward him/her or another employee.

    Even if an employee is in a protected class, you may still terminate him/her as long as you can document that 1) the employee violated stated policy or procedures, and 2) you have terminated others who are not in that protected class for similar offenses. It is helpful to have an Employment Handbook or other documentation that specifies procedures and violations of policy.

    HOW SHOULD THE EMPLOYER HANDLE TERMINATION?

    You've decided the employee can be terminated without legal consequences. The next step is to inform that employee that his/her services are no longer needed. The less said, the better. You do not owe the employee an extensive explanation and should keep the reasons brief and general such as, “Your performance level is not what I need,” or, “Your services are no longer needed.” Remember, Louisiana law allows one party to tape conversations secretly, so always assume you are being recorded. Do not provide the employee with a written explanation for his termination even if asked. Be professional even if the employee gets angry or emotional.

    Avoid disruption to the workplace by changing the employee's computer password to prevent access to your system, retrieve copies of keys the employee might have (consider having the locks rekeyed), provide boxes so that he/she can clean his/her office that day, and have someone walk the employee off the premises.

    You are required to pay an employee who separates from your practice, no matter what the reason, all wages owed and for any unused vacation within two weeks or by the next payday, whichever comes first. There are stiff penalties for failure to do so. You should pay the separated employee in the same manner that he/she had been paid before termination.

    WHAT HAPPENS AFTER TERMINATION?
    Once the employee has been informed he/she is being let go, inform your staff without explanation that he/she is no longer employed. Instruct staff that if any patient asks for the terminated employee, they should state that he/she is no longer employed - with no further explanation. All reference requests concerning the terminated employee should be handled by you or the Office Manager and should be neutral, i.e. stating the dates of his/her employment. If you want to provide severance pay, you should consult an attorney about securing a release from the employee as a condition for the severance.