Transcript for "You're Fired — Now What? Avoid Costly Terminations Mistakes: Live AMA": Awesome. Hi. Welcome to today's Mitratech Mineral AMA. You're fired. Now what? I'm Sloan Govro. Terminating an employer is one of the riskiest decisions an employer can make. Today, Kara Govro, principal HR and legal analyst at Mitratech, will share best practices for navigating them confidently and compliantly. Just a quick note, today's discussion provides general information, not legal advice. Please consult your legal counsel about specific situations. So Mitratech Mineral gives you direct access to certified HR professionals by phone or email with proactive compliance alerts, customizable resources, and employee training to help teams manage HR with confidence. The same kind of support you'll hear today. This session is driven by your questions. We'll cover as many submitted during registration as possible, and you can add yours to the chat now. Kara, let's get into it. Alright. Thanks. Hey, everybody. Glad to be here with you today to talk about one of my favorite topics. It's an important topic. It's nobody's favorite task, but it's a really important topic. And it is where a lot of risk lives for employers, and a lot of confusion sometimes lives for HR practitioners. So we're going to take a few minutes to talk about why termination is risky, even in an Atwell employment environment. A lot of your questions were actually around Atwell. So then we're gonna spend the bulk of our time taking your q and a that, some of you submitted ahead of time. If you submitted a termination question, I'm gonna touch it. If you are here with us right now and you didn't submit a question ahead of time, please, by all means, use the chat. I love doing live q and a, so I will be looking out there for for what you want to know. Okay. So just just a bit of an overview here. Why is termination risky when almost every employer in The United States is an Atwell employer? So there's one state that's not Atwell. It's Montana. And after the introductory period for an employee there, you do have to have a valid business reason to terminate them. So that's our one exception in The United States. But that doesn't mean that an employee who is let go can't claim that you did fire them for an illegal reason. So, you don't have to have good reason. You can have a bad reason. You can have no reason at all, but you can't have an illegal reason. And an illegal reason is one that is related to someone's protected classes or characteristics or that is, like, retaliatory because they took leave, or because they have, they've told you they're going to take leave, or perhaps they've reported you, for safety violations to OSHA. These are things that would be illegal. Pretty much anything else is fair game. That said, when you let somebody go, they're sad, they're angry. If if they didn't if they weren't on a PIP and you hadn't had a lot of performance conversations, they might also be shocked, which is not a good feeling to add to the mix. They're trying to figure out how they're gonna pay their rent in a lot of cases. And then if you pile on that you haven't explained to them why they're being let go, you haven't made it clear that it was a performance issue or that you actually have to lay off a whole bunch of people or, you know, that their behavior has been consistently bad. If you don't tell them why you're letting them go, people want to have an explanation when something like this happens to them, so they will create their own explanation for why that happened. And it will, in many cases, be an illegal explanation for why that happened. So, years ago now, I I had a college friend who posted on Facebook, like, a long, long time ago, how she had been fired on the spot for coming to her waitressing job with pink hair. She dyed her hair pink overnight. She obviously didn't think that that was gonna be a big deal. The employer didn't like it at all, and they terminated her on the spot. Now back then, I was not thinking in employment law terms, but was that legal? Absolutely. However, I can come up with so many scenarios where my friend, could tell a different story. So what if she told her manager the day before that she was taking antianxiety meds? Or what if she had, told HR that she was going to need to take FMLA for knee surgery and she was gonna be out for two months? What if she'd done that a week or two or four prior? Now all of a sudden, it looks kinda suspect that they're firing her on the spot for hopping hair. Won't she get it fixed it by her next shift? So legal, yes. Advisable, no. So we do want to be really mindful at termination time that we aren't shocking employees, that we do have a legitimate business reason, that we've documented that somewhere. All of this is gonna be really key to reducing your risk. That's really the only way to reduce your risk is to have a good business reason and documentation. In states that require a separation notice be provided to a terminated employee, what's the potential impact if the employer doesn't provide it timely or at all? It's gonna depend on state law. In most cases, it's probably going to be a relatively minor fine, minor being I couldn't tell you a $100, a thousand dollars. That's probably not the kind of thing an employee is usually going to sue for, that you didn't give them a separation notice, but it it'll depend on on state law and what it requires and and what those penalties are. Okay. So let's go ahead and get into your questions. First up and a lot of these are related to at will, so I've kind of touched on them a little, but I wanna make sure I I try to drill down into what you all were asking specifically. So will you explain the at will relationship between employers and employees? Yeah. Love to. Bottom line, at will means that you can terminate someone with or without cause and with or without notice, and it means that you're not guaranteeing them continued employment. So if you guaranteed employment after an introductory or probationary period, that would no longer be at will. It's it's basically an agreement or a contract and that you would need to find a way out of if you had promised, you know, or guaranteed ongoing employment. You don't have to have a reason to let an employee go. Like I just said, highly advisable. And an employee doesn't have to have a reason for to leave. And it also means that they're not required, like, by law or by contract to give you notice. So if they wanna quit on the spot, they can do that. You can request notice, of course, like most employers do, but you can't technically require it in an at will relationship. That will interfere with the at will relationship. Now you can certainly say things like, you know, if you expect a good perform a good review what's the word? It's not review. It's not performance evaluation. A good reference if you expect a good reference from us after you've left, you need to give, you know, x weeks of notice. That that's something you can do. But but other than that, we we wanna be careful with with attempting to require notice in any way, shape, or form. But like I said before, there are illegal reasons that at will doesn't get you around. So we don't wanna be terminating for exercising protected rights or because of protected classes or characteristics. What if okay. Well, we'll keep going here, and then I'll come back to your questions. How do termination laws vary in states that are at will? So at will is actually the absence of law. So Montana is, like, the only state that really has a termination law, with respect to when or how you let someone go. Now a number of states do have a requirement that you give a notice of some kind. Some states require that you give an unemployment insurance notice. Some require a separation notice. These things aren't particularly common, though. I mean, you could expect to see them in California. And a lot of states recommend that you give an unemployment insurance notice so the person knows that they could access that and they have the phone number to call or the website or whatever. But, oh, another termination law would be, how quickly you have to give them their final paycheck. So there are a dozen, maybe more states that require that you give the final check within a certain amount of time. So probably probably a couple dozen. And some of those have a pretty short turnaround. Like California, you have to give them their check on the way out the door. And Oregon, I think you generally have, like, three business days. So you need to know when they're owed their final paycheck. That's an important one. You should also know what you can or can't deduct in the state you're operating in. So you shouldn't just assume that because someone signed off on you deducting for the laptop that you loan them as an employee that you can legally do that. Employers people everywhere are are under the misconception that if you have a contract or an agreement that says something, that overrules the law, like, the the statutes, whatever they may be, and that is not the case. So the state law says you can't take a deduction for something, you can't take a deduction for it, period, even if even if the employee signs something. A lot of state laws do say that in order to take a a deduction, you have to get the employee to agree in advance. So that's a fairly common thing for employers to do is to ask, employees to, like, sign off that they will owe something if they don't return their laptop at the end of employment. But these are things you wanna check with state law, and we do have all of that information on the platform. We all of it. We've got final payrolls. We've got, you know, do you need to give an unemployment insurance notice? We have termination toolkits by state. So that's that's worth checking out. And someone asked this sort of related question. So what documents, if any, should you provide an employee a termination? Well, generally, we'd recommend providing an unemployment insurance notice that might be required by law. Somebody might need to provide them a a COBRA notice or a mini COBRA notice. That's continuation of their health benefits. That's if you were offering health benefits. If you weren't offering them, you don't need to give them that notice, but that's generally required. And then there might be some other requirements based on on state law. So that's where we've got these termination toolkits that, like, list everything in in each state, and it varies dramatically by state as to what is absolutely required, versus sort of, like, best practices. Alright. Let's scoot over to some questions here. Is it unadvisable to terminate an employee who's currently on disability leave even if the termination is based on an issue that is entirely unrelated to the employee's disability? It really depends. It's certainly riskier. Is it inadvisable? It depends on the situation. It's definitely riskier because they immediately have this other explanation for why you've terminated them. Generally, you don't want to terminate someone for performance issues while they're on leave because the performance issues are not current. They're not active. And if you didn't fire them before they went on leave for performance issues, it's it's pretty hinky that you now want to to let them go while they're on leave. Now if you're having a reduction in force across the board, you're doing layoffs, and you're not only laying off the people on leave or the people who have ever had a disability or something along those lines, and you have a legitimate business reason for why this person is being laid off along with these other five people, you know, that that significantly reduces the risk of letting that person go. We always wanna have a legitimate business reason. If If your legitimate business reason is that that person was having performance issues three months ago before they went on leave, that looks pretty suspicious because it's not timely. So we always wanna be looking for timeliness, when when we're dealing with people exercising rights, such as taking a leave. What if we don't have documentation for a performance reason? Well, I would create some. You can create retroactive documentation. You shouldn't backdate it and lie, at least not in my opinion. But you want to have written something down before you fire someone, unless it's like a behavioral like, if they do something totally wild right in front of you. You know? Let's say they grab a coworker's butt or you catch them stealing from the till. Those are more behavior than performance. You know, we don't need to have previous documentation and coaching for those things because because that doesn't make sense. You know, the punishment can fit the crime. But if you don't have documentation of a of a performance issue over time, that makes it riskier, and it's more likely that the employee is going to be surprised. I mean, if you haven't been talking to them about their performance, that does make that a riskier situation. So I would either I mean, if the performance is so poor and you just can't possibly have them around any longer, I would sit down before the termination meeting at the very least and write up all your explanations of why the performance is so bad that they should be fired. That would be that would be the the very least, you could do and definitely a best practice there. Great. If terminating a remote worker, what's the best way to handle getting their computer back? I would send them a prepaid box where all they have to do is, you know, pack the computer. You've given them the bubble wrap. You've given them the the prepaid sticker. You've you've printed it out for them or printed out the piece of paper, and they just need to use tape to put it on and go drop it off somewhere. You know, if if they don't do that, then you can consider whether, whether you have any recourse. You know, if they did sign something that said you can take a deduction, then it turns out the deduction is legal in your state and it won't take them below minimum wage, then then you could take a deduction for it. But if you just want the computer back, just make it as easy as humanly possible. I know back in the day too, occasionally, you'd be able to return something like that. Like, you'd get the box, you'd get the sticker, and all you'd have to do is, like, call a 1800 number to get FedEx or UPS to come pick it up at your house. I did that once or twice, like, a million years ago. I assume that's still a service they offer, but, basically, just make it as easy as humanly possible for the employee to get the thing back to you. Alright. So someone asked, can you talk about what constitutes just cause to terminate? So as we've been discussing, you don't technically need just cause except in Montana. However, it is highly recommended. So what that generally looks like is a legitimate business reason. So either you can point to a performance issue or you can point to a behavioral issue. You know, if you've got a policy that they've been violating, great. That's gonna be just cause. However, you wanna be careful there. We don't wanna use policy just as as pretext. I I represented my uncle years ago in an unemployment insurance claim. He was a delivery driver, and he got to a location, and he was unpacking the back of the truck. And a a pipe came out of the back of the truck and smashed him in the face, and it knocked a bunch of his teeth out. And he ended up going to the emergency room pretty much immediately. And he called my aunt from the parking lot in the car, like in his delivery truck. He called my aunt to say, Just had a bunch of teeth knocked out. I'm going to the emergency room. And they somehow deduced that he had called his wife to say he was going to the emergency room while in the vehicle, and making phone calls from the vehicle was not allowed. And so they fired him on the spot and and claimed it was because he'd made a phone call from from the vehicle. Now, yes, that was a policy violation, but were they firing other people for that across the board? Is that something they were actually monitoring, or is it more likely that they fired him because they didn't want to deal with an employee with an injury? Perhaps they thought they'd get out of a workers' comp claim if they just fired him. I don't know what their logic was, but we we won the unemployment insurance claim. He he didn't want to keep working there, so we didn't try to get him his job back. But, you know, there's there are there are reasons, that are technically legitimate, but if the person who's been terminated can still come with up with other reasons such that your legitimate reasons look like pretext, you know, that's not ideal either. So if we are terminating people based on policy violations, we wanna make sure we're being really consistent, and we're terminating everyone who violates that particular policy. Is there a least risky type of termination? Well, we've been talking about this at length. Right? The least risky termination is one that has a series of documentation for a performance issue or a behavioral issue. So you've talked to the employee a couple of times at least. You've given them the opportunity to improve. Now this doesn't need to drag on for months and months. You know, if if someone's tardy on Monday and they're tardy on Wednesday and you talk to them both times and they're tardy again on Friday, go ahead and fire them on Friday. But that's gonna be the third time they've screwed up. Right? And you've got some documentation from Monday and from Wednesday, and you've told them, hey. If you're tardy one more time, you're out of here. So documentation, opportunities to improve, that's that's how you reduce risk. Alright. Employee who has been this is sort of similar to something we talked about before. Someone asked, an employee who's been on declining who's had declining performance but has been on and off paid medical leave, so intermittently, how to approach that decision on termination? Well, again, we go back to documentation. So this person has sort of, like, a high risk thing happening at the same time, right, where they could say, no. You actually terminated me for for being on disability as opposed to lagging performance. So there's a couple of things we wanna look at there. Can we actually prove that their performance is lagging, or is this just like a gut feeling that could have a lot of bias tied up in it? Like, are they actually missing, you know or are they failing to respond to clients? Has have their sales numbers gone down? And then we wanna balance that against, okay. They're on intermittent leave. Should we be expecting less from them? You know? Or, you know, is the intermittent leave happening during these particular meetings, and the fact that they're missing that meeting is the reason they're behind? Can we help them somehow? Can we record that meeting and get it to them? So we wanna look for ways to solve the problem, especially when there's something risky, like they're on an intermittent leave. And we wanna make sure that the declining performance or the performance issue is not really related to the leave and something that we could fix or something that we just need to deal with for a little while. So when somebody goes on leave, we know it's gonna be a pain for the employer. We know things are gonna be more difficult. So if their performance is down because they're on intermittent leave and they're not there forty hours a week, they're only there twenty hours a week, you should expect that their performance will only be twenty hours worth of performance, and you need to sort of, like, bake that into to your decision making. In a if a series of documentation is the recommendation, why do most HR teams look to include a PIP in the term process? So, I mean, a PIP is just documentation. This is a whole lot of documentation. Right? That you've told the employee, and you've given them time to correct the issue, and you've probably talked to them throughout the PIP and written up your notes a couple of times. So a PIP is just hardcore documentation, and a lot of HR teams see that as a necessary risk reducer. I don't think a PIP is always necessary at all. Like, I think if you've coached the employee and then you've had performance conversations, you've written those up, you've said, hey. If you don't improve, bad things will happen, including termination, then, like, that more or less is a PIP. It's just you haven't called it a PIP. But HR teams, you know, they hear, oh, PIP is the safest way, which it is because like I said, it's it's, you know, documentation on steroids, and and so they wanna do that. So it it's not illogical, to to go that direction. Alright. And then I'll I'll do one more that a couple of you had questions about presubmitted. Basically, you have heard or you're wondering if it's best to give employees not very much information about why they've been terminated, such as letting telling them it's a bad fit, or a lot of employers want to just say, hey. I'm an at will employer. We don't have to explain to you. We're just gonna let you go. These are very, very common questions. Some some attorneys disagree. I've been on the soapbox for a very long time that you need to tell people why they're being let go. If you don't tell them, they're gonna write their own story about it, and it's not gonna be a story that's flattering for you, the employer. If you just if you pull somebody in and you say we're letting you go, it's just not a good culture fit. What does that mean? Have you talked to them before? Are they shocked now and it's out of the blue? Like, have you talked to them about how they didn't fit into your culture before and tried to fix that? These these vague explanations, open the door wide for the departing employee to say, nope. This was because I'm Jewish, or this was because I'm the only man in this whole department of women, and the women don't like me, and it's a sexism thing, or, you know, whatever it might be. They're they're going to write their own story. Or because I was on intermittent FMLA, and now all of a sudden, it's a bad fit. So I'm very much a proponent for making it clear to the employee what the performance issue was or what the behavior issue was. And, hopefully, we've got some documentation, and this isn't the first time they're hearing about it. They they understand where you're coming from. They're not gonna be shocked. Alright. I will, wrap up there. Oh, actually, no. Sorry, guys. I've got, I've got one more slide with just a few takeaways, for some things we've basically talked about already at length. So, best practices, takeaways here. Have a legitimate business reason for any termination, and make sure it's documented. Also have a plan for your meetings. So like we talked about, state laws vary pretty significantly. Most of them don't require that you have a whole lot of specific paperwork, but you do wanna know if there are a couple things that you should be giving out. So we wanna plan for that ahead of time, Figure out when their final final pay is due. We don't wanna screw that up because that one can be pretty expensive. And then finally, treat these departing employees with respect. They there's that phrase. Right? It's not about what you said. It's about how you make them feel. So make them feel respected on the way out the door even if you weren't all that impressed with them as an employee, and, that will that will help ease the way. Alright. Now I'm gonna turn it back over. Awesome. Kara, thank you. That was incredibly practical, and I know a lot of people in this room just got a clear answer to something that they've been wondering about. So thanks to everyone who sent in questions today. Please don't forget to answer the last poll that's now in the poll tab. We host conversations like this every month through the Mitratech Mineral Elite AMA series. So join us on October 20 for our next session on pay equity and pay transparency. The registration link is also in the chat now. So thank you guys for joining us, and we'll see you next time.