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Is Firing an Employee Without Warning Ever Acceptable? Eight Scenarios to Consider

Addressing employee behavioral issues can be tricky, but firing an employee without warning is never wise. In most cases, a “progressive discipline” approach is recommended: First, you should counsel the individual, and if the problem persists, follow up with written warnings before proceeding to termination. This cautious approach helps protect your business from a potential lawsuit.

Here's a closer look at eight scenarios you may encounter in your business, and how to handle them legally and fairly:

Threats of Violence

Fire on the spot? Yes

When disgruntled employees take out their anger at work, the consequences can be dire. That’s why verbal threats, stalking or outright acts of violence are grounds for immediate termination. Depending on the situation, you may need to involve another person as a witness to the firing — or even call the police if the behavior has escalated.</li>

Neglecting to Follow Safety Measures

Fire on the Spot? Yes

You’re responsible for providing a safe workplace. Assuming you’re complying with the safety standards that apply to your business and industry — and have trained employees on the proper precautions — you can and should immediately terminate an employee who blatantly ignores these safety measures.

Profanity Toward a Coworker or Customer

Fire on the spot? Yes

Vulgar outbursts against a colleague or customer should never be ignored. Religious, racial, ethnic and gender-based slurs are especially problematic, because they can quickly veer into harassment. An employee who swears too much may need only counseling, but one who hurls profanities or slurs in a heated argument should be shown the door.

Frequent Absences

Fire on the Spot? No

Excessive absenteeism should be addressed, especially when you’re dealing with employees who are always late or frequently call out sick. But be careful. Some absences are protected under the Family and Medical Leave Act (FMLA) and other employment laws, and shouldn’t lead to disciplinary action or discharge. Get the facts before you make a decision.

Sharing Salary or Bonus Information

Fire on the Spot? No

Though you may prefer that employees not talk about their wages, you can’t stop them from doing so. The National Labor Relations Act (NLRA) gives employees the right to discuss hours, pay and working conditions. In fact, such discussions, even on social media such as Facebook, are a form of “protected concerted activity.”

Complaining about Discrimination or Harassment

Fire on the spot? No

Firing an employee who complains about discrimination or harassment (or reports illegal or unethical activity) is considered illegal retaliation. Other forms of adverse action, such as demotion, salary reduction or change in job assignment, are also prohibited. Be aware: Retaliation is against the law and can result in significant penalties even greater than the underlying accusation or complaint of wrongdoing.

Poor Performance from a New Hire

Fire on the Spot? Maybe

You had high hopes for your new hire, but after a month on the job, it’s clear the individual is not a good fit. Although the individual is on probation and you’re technically allowed to terminate with or without cause, this approach is dangerous. It’s best to speak with the employee and document the performance shortcomings to support your termination decision. If the issue is anything from slides 1, 2 and 3, however, you can fire the person immediately.

Subpar Output from an Independent Contractor

Fire on the Spot? Maybe

First things first: An independent contractor (such as a freelancer, consultant or other skilled worker) is not an employee under Department of Labor (DOL) and IRS guidelines. As such, the issue is not “how to fire a contract employee,” but how and when you can terminate a contract worker. Under the terms of a defined work contract or formal agreement, you may be entitled to certain actions for subpar work or other agreed upon provisions. This written document will dictate how you broach the situation and end the relationship.

Protect Your Business with Solid Policies

Formal, written employee policies are your first line of defense with any disciplinary action. “Your policies should clearly outline the rules of your workplace, as well as the potential consequences for any misconduct or violations,” says Ashley Kaplan, compliance attorney for ComplyRight. For assistance in creating comprehensive, attorney-approved employee policies, try the Company Policies Smart App.

Related Content:

Be Careful How You Respond: Wrong Termination Due to Retaliation is Always a Risk

5 Difficult Firing Scenarios and How to Handle Them Fairly

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