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A HUMAN RESOURCES REFRESHER

The process of employee termination is a critical component of every human resource leader’s job. This event can be stressful for all involved. If executed improperly or incorrectly, it can be devastating. In certain circumstances, terminating an employee can constitute Wrongful Termination. Most employees in the United States are considered At-Will employees, no matter if they are full-time, part-time, freelance, professional, office staff, manual labor or whatever. The definition of At-Will means an employer reserves the right to terminate an employee with or without cause at any time. The converse is also true, meaning an employee can quit or resign at any time under the same definition. This At-Will definition generally negates concerns of wrongful termination however, At-Will employers are best served by being prepared for any claim. An unlawful termination is something no employer wants to do, and a claim is not a process any employer wants to be accused of or defend. Often reasons for the termination can get lost in the process once it begins and there can be many steps involved as well, so it is advisable to stay on top of all human capital management topics from the get-go.

Federal and State governments have enacted a wide range of laws protecting employees from discriminatory treatment, unfair labor practices, unsafe working conditions and more but these laws also protect the employer. The law presumes At-Will employment in every state in the Union except Montana unless clear evidence exists to the contrary like a contract that spells out termination criteria. For general purposes, the following is a list of usual and customary employment termination no-no’s:

  • DISCRIMINATION: Is a catch-all term for many wrongful and illegal reasons for termination. This covers such things as gender, sex, sexual orientation (varies by state), age, race, ethnicity or national origin. These categories are considered ‘protected’ meaning termination must be for other, documented reasons like performance or attendance. It is best to not even allude to any of the above in a termination process or you as the human resources manager and your employer can find yourself in a lot of hot water.
  • PREGNANCY or any medical condition relating to pregnancy: This is also considered discrimination but has a special protection outlined in the 1978 Pregnancy Discrimination Act and the 1993 Family and Medical Leave Act (FMLA) depending on length of employment with the company. Employers are also required to make certain accommodations for pregnant employees if needed.
  • DISABILITY: This is also a discriminatory reason and falls under the 1990 Americans With Disabilities Act (ADA). The ADA affects any employer with over 15 staff and outlines criteria for any employment decisions regarding these staff members including hiring and firing. This also covers such things as service or support animals if they are not disruptive.
  • RETALIATION: It is illegal to terminate any employee for filing a complaint against an employer. Sexual harassment is a prime example of this. Similarly, complaints regarding working conditions or facilities and wage and hour violations fall under the 1970 Occupational Safety and Health Act (OSHA). This is designed to protect whistle-blowers who may be afraid of retribution.
  • LIE DETECTOR PARTICIPATION: An employer may not terminate an employee for refusing to take a lie detector test. This is covered under the federal 1988 Employee Polygraph Protection Act (EPPA)
  • RESIDENT ALIEN STATUS: This is covered by the 1986 Immigration Reform and Control Act (IRCA) which specifies how an employer may terminate a resident alien who is eligible to work in the United States.   

This list outlines the main federal statutes regarding wrongful termination.  Additionally, many states have further laws pertaining to usual (or unusual) and customary employment termination requirements.

Many employers including top healthcare facilities utilize a termination checklist whenever possible in order to protect themselves, their clients, vendors, contractors and ultimately, the bottom line. Suggestions for these checklists include:

  1. Documentation of details: In this, no detail pertaining to the employment performance is too small and it is important to establish and follow protocols.
  2. Termination letter: Outlining the specific reason for the termination can protect an employer from lawsuits even if your particular state doesn’t require them. It also provides closure to the departing employee. It is particularly important in the absence of a termination meeting.
  3. Department Notification: Including the specific department of the employee, Payroll, IT, Security, Facilities management, Legal and Finance, Administrative and front desk/call center staff.
  4. Termination Meeting: When possible. The discussion can include benefit status information, last paycheck, sick days, repayment of payroll advances, return of company property (books, laptops, phones, keys, ID’s, passwords) and a review of confidentiality or non-compete clauses. This can help smooth and manage the logistics of transition for the employee as well as the human resource personnel involved as this is an emotionally challenging situation.

Employees who are determined to have been wrongfully terminated can be entitled to back pay, reinstatement, compensatory damages and other relief. Definitions of wrongful termination vary between jurisdictions, so it is always appropriate to use best practices, anticipate the worst, cross your “T’s” and dot your “I’s”.  Please consider this as a guide for insight and information. Consulting a legal employment specialist for specifics for each location and situation is recommended.

NHS has a talent pool of fully qualified Interim Healthcare Human Resource professionals ready to step in to any situation. Contact us to discuss your hospital’s HR staffing needs as well as clinical interim nurse leadership gaps. Our recruiting team is always on hand to work with potential candidates who are considering an interim leadership role for their next career move.