Most employers aren’t aware that terminating an employee the wrong way can actually draw a lawsuit. Accordingly, it is highly recommended that you comply with the following dos and don’ts when advising an employee that they are being let go from your pizzeria:
Do: Communicate Clearly and Maintain Records
Consistently communicating with your employees about the restaurant’s expectations of them in their role will assure both you and your employees are on the same page. When an employee fails to meet expectations, the restaurant should both address and maintain a record of these instances via either documented verbal warnings or formal write-ups. It is important to have these discussions and make these records contemporaneously to assure a clear and consistent message to your employees. Also, having the employee review and execute the warning/write-up will prevent later claims by the employee that they were never given any notice of their poor performance. When the time comes to terminate that employee for their continued failed performance, you will have the documentation to support your claim.
Do Not: Rush to Terminate
On rare occasions, you may need to act swiftly and make same-day decisions to terminate, if, for example, the violation of company policy is extreme and/or rises to the level of illegal behavior. However, most times the restaurant will want to take the appropriate time to assure all is in order before advising the employee of their termination. For example, in most cases of alleged discrimination or harassment, the restaurant will need to investigate the allegations, obtain witness statements, and communicate with the employee about the incident before making a decision to terminate.
In some circumstances, it may be most appropriate to suspend the employee while such an investigation is underway, depending on various factors, which can include the protection of other restaurant employees. Other times, the termination may be due to an employee’s continued failure to perform on the job. In either scenario, if the employee works in California, the restaurant will be required to have that employee’s final check ready the same day of termination; and depending on the situation, the restaurant may also want to consider offering the employee a severance and release agreement, at the time of termination, to limit future liability for the employer. Taking the time to have all documents, checks, agreements, etc., in order before termination can save the company from future lawsuits.
Do: Provide the Employee With a Reason for Termination
When a restaurant does not address the reason for termination with its employees, it can often lead to these employees jumping to the conclusion that they were terminated for an improper or illegal purpose. On the other hand, providing lengthy detail regarding their poor performance may unnecessarily inflame the employee. Accordingly, for example, in cases of failed performance, a brief discussion addressing their past performance issues, informing them that the company has not seen proper improvement, and addressing that the company has now made a final decision, is often enough to send the appropriate message.
Do Not: Avoid Holding a Final Termination Meeting
In most instances, it is best practice to hold a final termination meeting with the employee. (An exception to this rule might be if the employee was terminated for illegal behavior, and you do not want that employee returning to the restaurant.) Holding a final meeting sends a very clear and final message of termination so that the process is not otherwise unnecessarily prolonged. The meeting should be held in a private office or other location away from the employees’ peers. The meeting should be direct and to the point—no more than 10 to 15 minutes. A second witness should be present (i.e. an HR representative, a district manager, or a director) to take notes and serve as the restaurant’s second witness to attest to statements made at the meeting. With two witnesses present, there is less risk of the employee fabricating a different story to his/her benefit should litigation ensue down the line. If there is any concern that the employee could be hostile upon learning of his/her termination, the restaurant should arrange to have security present while the employee collects his/her things from his locker and to escort the employee out of the restaurant.
In summary, heeding the above advice will help alleviate lawsuits down the line and make the uncomfortable situation of termination as streamlined, professional and easy as possible for both parties.
Lindsay A. Ayers is a partner at the California-based labor and employment law firm of Carothers DiSante & Freudenberger LLP, where she provides regular consulting on compliance with wage and hour, and other employment laws, and a vigorous defense should her clients face employment-related litigation. She can be reached at layers@cdflaborlaw.com or (949) 622-1661.
