Last week I wrote about the laws that govern the firing of an employee and what steps an employer should take to protect itself from claims by a fired employee under the federal employment discrimination laws. Please see that post to determine whether your company is subject to those federal laws. If so, once you have decided to fire an employee, you should meet with him or her in private and have another management level person present to act as a witness. The meeting should be kept as short as possible and the employer should avoid getting into a discussion with the employee over the validity of the reason for their firing. After the meeting, what was said and done by the participants should be documented in a memo to the employee’s personnel file.
In deciding what reasons to give, the employer should keep in mind that it may be required to prove them if the employee decides to file a complaint with the Equal Employment Opportunity Commission. One reason is enough and it should be the most important and easily provable (i.e., best documented) one, but the employer should make it clear that other reasons also exist so as not to be limited to the reason given in its defense of any claim the employee may make. In order to avoid the possibility of a lawsuit by terminated employees, many employers offer to pay severance benefits in exchange for the employee signing a general release of all claims against the employer. To be enforceable, the employee must be given something of value that they are not otherwise entitled to receive and for the release of age discrimination claims, certain specific language must be included in the release document.
As noted in last week’s post, even those employers who are not subject to the federal employment discrimination laws would do well to follow the above employment termination procedure. If possible, before the employee leaves the employer’s premises, all employers should make sure that the terminated employee has returned all property belonging to the employer and the employer should take whatever steps are necessary to make sure that the employee no longer has access to its computer system and the ability to post items on its website or social media platforms.
At the termination meeting or as soon afterwards as possible, the employee should be given a completed and signed Separation Notice on the form required by the Georgia Department of Labor. That form requires the employer to, among other things, state the reason for the termination of the employee. That reason should be consistent with what the employee was told. In order for the employee to be denied the right to receive unemployment compensation, the reason on the form must be the knowing and intentional violation of an employer’s rule, order, or instruction and the employee must have known ahead of time that such a violation could result in the termination of their employment. This is a very heavy burden to meet and is made all the more difficult by the presumption in favor of granting unemployment benefits wherever possible.
Even if the employer has no objection to the terminated employee receiving unemployment benefits, it should respond to any written requests from the Georgia Department of Labor for information related to the employee’s claim for such benefits. Under a federal law that became effective in October 2013, if an employer fails to adequately and timely respond to such an information request for three separate unemployment benefit claims during any calendar year, they will be automatically charged for any subsequent benefit claims paid during that year, even if the payment of such claims is later reversed on appeal or an overpayment of benefits occurs.