Can I fire someone over something I saw on social media?

Termination

Social media occupies a strange place between the public and private spheres, and that overlap has the potential to get people in trouble. Facebook, Twitter, and other sites give people a forum to share their lives – which can mean everything from posting personal photos to venting about workplace grievances. However, the content of these posts doesn’t always stay private. As an employer, there’s the ever-present chance that you could see something on an employee’s social media profile that changes your perception of them so drastically that you may no longer want them to be associated with your business. But are you within your legal rights to fire an employee for something they post on social media? According to the National Labor Relations Act, that all depends on the content and circumstances. Here’s how to know if you’re protected.

When It’s Legal

A contract has been breached

Did an employee share confidential company information publicly? Post a photo of sensitive materials that breaches a non-disclosure agreement? If your employee violates a contract with their social media activity, you’re well within your rights to terminate them. Just make sure you retain their signed contract in case of a potential wrongful termination suit.

They’re harassing customers or another employee

As long as you have an anti-harassment policy clearly outlined in your official employee handbook, your business will be protected in terminations for harassment and hate speech. Without this agreement like this, you could unfortunately still be at risk if your former employee can prove the comments were non-violent or did not create an issue for the company – so it’s extremely important to create and retain signed agreements on matters like this from the beginning of employment. You can read more about how to create a solid employee handbook here.

You have an at-will employment agreement

At-will employment grants employers the right to terminate an employee at any time for any reason, as long as that reason does not infringe up any rights granted by the Department of Labor. If your business is in an at-will employment state and you decide to terminate an employee for a social media post, you are likely within your rights as long as you can prove you are not violating their rights with your decision. For example, you could not fire an employee because you discover they have a disability through a Facebook post.

When It’s Illegal

It’s a concerted statement

Employees of private companies reserve the right to discuss subpar working conditions with co-workers under concerted activity protections. This means that if two or more of your employees have a discussion that casts your business in a bad light on social media, it’s not necessarily grounds for a legal termination. While it’s preferable that these issues not be broadcast publicly, this type of speech is protected, and you could be found guilty of wrongful termination.

Off-duty conduct laws

Employees have rights that protect off-the-clock actions from affecting their employment. That means you can’t typically fire an employee for a social media post they’ve made during their  private time – unless it otherwise conflicts with any of your company’s policies as described above. As with any termination, it’s important to back up your claim with as many other pieces of evidence and witnesses as possible before you take action so off-duty conduct laws can’t be used against you in a lawsuit.

Employee social media activity can be a grey area when it comes to disciplining and terminations, but with all the appropriate preparations and policies, you do have a legal course of action for protecting your business. Having a dedicated team take up the burden of HR responsibilities can help you establish a process, and avoid mistakes that make your business vulnerable to legal retribution. Bambee helps give small business owners the HR tools to grow and protect their business, so they can get back to running it. Head over to www.bambee.com to see how we can help support your organization in all its human resource needs.

What To Do With a Bad Employee

corrective action, Termination

Businesses take a big risk when hiring employees of different experiences and personality types, so when the team has a toxic employee, the business and everything related to the business can be in danger.  Even when the bad or toxic employee is known, it can be difficult trying to remold them into an engaged and happy employee so here’s what to do with a bad employee.

What To Do With a Bad Employee

  1. Assess the situation.  Before you can make any judgments on the employee, you need to do some research on the employee’s behavior and work performance.  You’ll want to dig into all the past and current performance metrics, any employee surveys or feedback, and review notes from past meetings. As you start to better understand how the employee turned bad or toxic, check in with HR to get some guidance on what additional intel you’d need to properly understand the situation.
  2. Determine if corrective action is needed.  Once you’ve assessed the situation, you’ll want to figure out if taking corrective action with the employee is an option.  Typically, when you do not have past documentation of any performance or behavioral issues, corrective action with help both you and the business. Disciplining employees by using a corrective action plan can help kickstart the process of trying to rehabilitate the employee.
  3. Check in with HR.  Depending on your organization’s policies and the employee issue, it may be difficult to figure out which course of action to take.  HR is your best resource to help you make the right decisions and can help determine if corrective action or termination is the best course of action.
  4. Openly communicate with the employee.  Once you’ve gone through the first three steps, it’s time to have a conversation with the employee to understand their perspective.  This will help clarify any potential issues and can help you decide if any corrective action should be taken. 
  5. Consider termination.  If everything has been researched, communication has happened between the employee and HR, and the employee continues to be bad or toxic, then firing the employee becomes a real option. Discuss with HR if you’re considering firing the employee so you can ensure the business stays protected if the employee needs to be terminated. 

How to Train Managers on Termination

Termination

As an HR team, you have a tall order balancing between recruiting, talent development, and enforcing company policy.  And while most managers do well in day-to-day management of their employees, when it comes to firing them, they could feel very lost. It’s important to train all managers in tasks and processes that help mitigate risk to the company, especially on terminating employees. 

Training Managers on Employee Termination

  1. The importance of training.  The training helps to protect the business and provide the right tools to ensure the process is standardized and done the same across the company.  If the process is followed correctly and is done the same for every employee that’s fired, then it significantly decreases risk of a wrongful termination lawsuit related to being treated unfairly and creates less confusion amongst managers about what the right process is.
  2. The most important points to focus on.  There are a handful of topics that managers need to understand before terminations can happen. 
    • Managers need to have a good understanding of documentation and what the corrective action process is.  This helps ensure they understand there’s a whole set of steps to follow before even considering terminating an employee.
    • Managers also need to be able to objectively articulate why the employee is to be terminated.  There are main categories of reasons, with the basics including unsatisfactory performance, a change in organizational structure, and direct misconduct. They need to understand if they even have the authority to fire an employee.
    • The process and tools used to get a termination approved. It’s helpful to walk managers through an example case scenario to ensure they understand.
    • How to conduct a termination meeting is vital to ensure the manager does not say anything that could endanger the company.  Make sure to avoid small talk, remain calm, and try to direct the meeting in an organized manner to avoid any misleading communication. 
  3. Have reference guides available.  Managers just learned a lot of new information. It’s important to have the information used in the training available and easily accessible. Depending on the employees they’re responsible for, the need to terminate an employee could happen their first month or after their first year.
  4. Don’t be afraid to enforce the rules.  Managers represent the company and are the first line of defense against any possible employee issues that can pose a risk to the business. If a manager is not following the policy the HR team has set forth, they’ll need corrective action, or else they may not be fit to be a manager with direct reports. At the end of the day, the business needs to be protected before it can do anything else (especially grow revenue).

Bambee gives Managers and HR Teams the right tools to fire an employee the right way without worry about any additional training. Best-practice guides and tips are available at every step to ensure each Manager follows the same process the right way every time. Find out more at www.bambee.com.

-The Bambee Team

What is a Wrongful Termination Lawsuit?

Termination

Firing an employee is not something that any HR team or business owner enjoys doing, but sometimes it is necessary to fire an employee in order to build the company and focus on the future.  However, there is always the risk of a lawsuit for wrongful termination.  The process of a wrongful termination lawsuit can be a nightmare for any business.

Wrongful Termination Lawsuits

  1. The wrongful termination.  Once an employee is terminated, they can sue for any number of reasons. For example,  you can be sued for implying to your former employee that he or she will not be fired; discrimination related to race, ethnicity, religion, age, sexual orientation, or for any disability; retaliation of the employee’s rights and whistleblowing.  Every state has different rules, which may be different from federal rules. 
  2. Are you at risk?  One of the first things you need to ask yourself should be “Is my business or organization at risk for wrongful termination lawsuit?”  Before you try and answer, there are some things you need to know.  You can be sued for a number of reasons, including violating anti-discrimination laws, sexual harassment, not following through on written or oral agreements, or breaking labor laws.  There are a number of ways a company can be sued after firing an employee, so it’s important to think through the firing carefully and consult with a lawyer just in case.
  3. They’re costly.  The average cost to fight a wrongful termination lawsuit is $250,000, and there are a number of additional costs involved with firing and rehiring a replacement.   In addition, if your company is deemed liable or found to have violated any labor law, then you can most certainly bet that you will pay much more.

  4. What all can the fired employee be compensated for?  This can be something that varies from case to case.  You could be accountable for paying any benefits lost, possible pay compensation, punitive costs, emotional distress, and most importantly, the fees it took to hire the lawyer.  It is wise for you (the owner) or any HR team to weight the benefits when it comes to firing an employee.
  5. They’re time-intensive.  If you thought your 10 hour day the other week was long, then brace yourself; the wrongful termination lawsuit process will be lengthy.  Why is this?  Your former employee obviously noticed something in your firing process that indicated that you may have done something incorrectly.  This means you will need to gather all documentation and start fine tuning any piece of documentation to support your firing decision.  Time spent on this process is money lost.
  6. Settlement costs are high. One out of ten wrongful termination lawsuits end in million dollar settlements. For the rest, the average costs are $40,000 to settle a wrongful termination case. This is just the settlement money paid to the plaintiff, which is in addition to costs related to defending against the lawsuit.
  7. How could you lose?  There are various ways in which you can lose a wrongful termination lawsuit and it all comes down to your documentation.  As a business owner or HR team, it is vital that everything is documented accurately and effectively so that risk to the business is low. Unsure of how to document? See which corrective action process is right for your business.

Bambee helps make sure your business is protected from wrongful termination lawsuits by helping your company’s managers give you the documentation and insight you need about employee performance and behavior. Find out more at www.bambee.com.

-The Bambee Team

Making the Most of an Exit Interview

Termination

wAn exit interview helps ensure the exiting employee, whether voluntarily leaving or not, leaves with as positive a view of the company as possible by sharing information with HR they may have not been able to share while employed. The information shared during the exit interview is especially important if there’s anything happening that can increase risk to the business.  

It is highly recommended that the exit interview is conducted by a member of the HR team or at the least, a neutral party in the manager to employee relationship. This will help give the employee a platform to give honest feedback. Here are a few of the most commonly asked exit interview questions for employees voluntarily leaving:

  • Is there any feedback you’d like to provide about your manager?
  • What are your thoughts about how you were treated by your supervisor and co-workers?
  • Do you believe that your work was recognized and appreciated?
  • What is the morale of your co-workers like?
  • What steps would you take to make this company a better place to work?

And here are a few of the most commonly asked exit interview questions for employees being terminated:

  • Is there any feedback you’d like to provide about your manager?
  • Is there any feedback you’d like to provide about the company? 
  • Is there anything you’d like to share regarding your time here at the company?

Here are a list of items or behavior we advise against during an exit interview:

  • Don’t use slanderous or emotional language
  • Don’t agree or disagree with the individual if he says negative things about other people or parts of the business
  • Don’t admit fault or place blame on an individual or team
  • Don’t respond at length and instead, keep responses to a minimum and let the exiting employee speak

Exit interviews are an opportunity to improve working conditions within your company and can also give you insight to any possible organizational issues. An employee that quits or is fired can hurt your business and the morale of the team. Exit interviews help make sure you can learn as much as you can in order to mitigate any possible problems before they get out of control.

Bambee helps HR teams get ahead of any potential issues by giving Managers the freedom to record incidents of any kinds long before any corrective action is needed. 

Head over to www.bambee.com to see how Bambee gives HR and Managers the right tools to get ahead of potential issues.

-The Bambee Team

The Employee Termination Checklist

Termination

You want to terminate an employee and protect your business from any future wrongful termination lawsuits. Below is a high-level checklist to help save you time. Bambee always recommends consulting with your lawyer or appropriate legal counsel before terminating an employee.

The Pre-Termination Checklist
The goal of the pre-termination checklist is to decide how much of a risk the employee poses once terminated.

  • Review local, state, and federal employment laws
    • Fair Labor Standards Act (FLSA)
    • Discrimination regulation established by the Equal Employment Opportunity Commission (EEOC) and if the employee is part of a protected class
  • Gather documentation related to the employee
    • Performance reviews
    • Corrective actions
    • Timecard sheets (if applicable)
    • Any documentation that is necessary for the termination not listed such as employment contracts, job descriptions, and email
  • Get approval by HR (if applicable)
    • HR will review all the paperwork and help determine the risk of the employee to the business

The Termination Checklist
Once you’ve been given the OK to terminate your employee, here’s what to do in preparation for the termination meeting and during it.

  • Gather legally required documents
    • Final paycheck
    • Termination letter
    • COBRA notification (if applicable)
    • Unemployment notification (if applicable)
    • Separation agreement (if applicable)
    • Severance (if applicable)
  • Prior to the termination meeting
    • Schedule a meeting with the employee (or plan to call the employee into the office at a certain time)
    • Prepare and practice a short, concise termination speech
    • Make sure there is at least one witness for the meeting (ideally, someone representing HR)
  • During the termination meeting
    • Deliver the prepared speech
    • Gather any and all company equipment, including but not limited to: access cards, parking passes, laptops, cell phones
    • Deliver any legal documents prepared earlier
    • Ensure they have a point of contact (ideally in HR) if they need to return any signed paperwork, company property, or to answer any questions

Post-Termination Checklist
Once the news has been delivered and the employee has been fired, your work isn’t done yet.

  • Coordinate with HR or legal to hand-off any additional documentation
  • Communicate with accounting to deactivate the employee from payroll
  • File a ticket with IT to revoke access to company tools and information, including:
    • Company Email
    • Chat Apps or Services (e.g. Yammer, Slack)
    • Database or server logins
  • Ensure HR is available and actively waiting for any signed documents or company property not handed over during the termination meeting

We know this is just the tip of the iceberg when it comes to terminating an employee the right way. Firing an employee the wrong way can really hurt your business. The average cost of defending against a wrongful termination lawsuit is $250k and ~275 days to fully resolve according to Hiscox Insurance.

Bambee helps business owners and HR teams terminate employees in a more compliant way to help reduce the risks related to wrongful termination lawsuits. Find out more at www.bambee.com.

-The Bambee Team

 

How to Fire Part-Time Employees or Contracted Employees

Termination

Firing an employee the right way is a tedious task that requires attention to detail and great documentation.  When it comes to your part-time employees and contracted personnel, it is important to understand how the usual process changes. We’ve outlined the biggest components to keep in mind. 

How to Fire Part-Time and Contracted Employees

  1. Gather documentation.  Just with any employee, it is important to document anything and everything to make sure there are no slips in the process.  Documentation needs to include performance plans, written warnings, and any other issue documentation that has been formally discussed and agreed upon with your employees. 

  2. Review any contracts.  There are two types of contracts: expressed and implied. Expressed contracts are typically written documents, and most small businesses are familiar with this. Implied contracts are when employers make a promise (usually, verbally) about the job, for example, job security.  This is where it typically changes between full-time and other types of employees, so review each clause to ensure you’re not breaking any part of the contract.

  3. Keep HR in the loop.  Your part-time and contracted employees were hired to perform a particular job duty and have specific job titles.  Just like their full-time counterparts, part-time and contracted employees need to follow the same company rules and procedures as the other employees. This means you should be in constant communication with HR during the firing process and have someone from HR present at the termination meeting.

  4. Be brief in the termination meeting.  Firing an employee is hard, and the last thing you’ll want to do is drag the process out.  Prepare what you’re going to say, deliver the termination at the start of the meeting, and be objective and concise about the reasons why. 

  5. Disable their access to your company data.  After your part-time or contracted employee has been fired, you’ll want to disable any access they have to your company’s data, which can include company email and shared data drive.

  6. Be open with other employees.  There is always a chance that your other employees may have negative emotions to the process.  If you let your part-time or contracted employee go, consider holding a meeting with your other employees so that they can have a chance to voice their concern with the situation if needed. 

Firing part-time employees and contractors the right way can be confusing and difficult, but Bambee helps make terminations straightforward and fair. 

Head over to www.bambee.com to see how we give HR and Managers the right tools when it’s time to terminate a part-time employee or contractor.

-The Bambee Team