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Rule #1 Get personnel file in order
Documentation is the single most effective defense if a suit is filed. Handwritten notes are fine. There should be specific instances noted in the employee's file concerning performance issues with as many details as possible. Performance reviews that document conversations about areas needing improvement and plans to meet those goals carry a lot of weight.
Rule #2 Be proactive
Assume the employee will contact an attorney and plan for it. Not everyone terminated person does, but better to be prepared just in case. Have plan in place to explain why termination is right in this case and know what steps you will take to make what is always an unpleasant task go as smoothly as possible.
Rule #3 Cool off
Discuss the situation with a peer, colleague, consultant or lawyer before acting, allows for rational thinking. Emotions are what cause lawsuits. It is possible to "suspend pending advisability of discharge" while considering termination. Also, consider having the employee respond in writing within 24 hours.
Rule #4 Treat all employees equally
Before the termination, check that this employee will be treated in the same way as other former employees with similar disciplinary situations. Practice policies should be applied fairly to all employees.
For example, your attendance policy may state that three or more absences in a 90 day period is considered excessive and will result is disciplinary action up to and including dismissal. However, if you never dismiss employees until after at least six absences, and all the employees know it, a dismissal after only three absences could cause the suspicion of discrimination and/or wrongful termination and lead to a lawsuit. If two employees are treated differently, be prepared to explain the differences in their circumstances that justify differential treatment.
Rule #5 No surprise endings
Give a last chance warning or suspend. It is important to give employees notice of substandard performance and a reasonable period of time to adjust their behavior or improve their skills before a resignation request or termination. By not being surprised, the employee is less likely to become overly emotional during the termination meeting. It is this emotion of feeling "wronged" that may motivate someone to file a lawsuit against the practice.
The last chance warning or pre-termination discipline should reflect the prospect of termination if future problems result to prevent employees from "setting up" retaliation or whistle blower claims. There are exceptions to the "no surprise endings" rule; major infractions of organizational rules or gross negligence may lead to immediate dismissal. An immediate firing should be the exception, not the rule.
Rule #6 Document the facts
Give the employee a written termination letter referring to employee notice forms and the facts that led to the termination decision. Where subjective issues are involved, be clear and precise about the reasons. Wherever possible, quantify the damage that led to the termination (lost patients, cost of missed billing, lower morale, etc.) The individual should be allowed to retain his or her dignity. Have a consultant or attorney help if necessary. Never fire for attitude, rather, explain the underlying problems.
Rule #7 Be prepared
As in all critical meetings, you should be prepared. Think through what you want to say to the employee. Emphasize the business need for the termination. Figure out how you will deal with your emotions, as well as the employee's. It is important to treat the employee with dignity and empathy, but not sympathy.
Rule #8 Ask for a resignation
It is in the best interest of the practice to have an employee resign, rather than be terminated. It is slightly easier to ask for a resignation, and it may reduce your unemployment liability. If the employee refuses to resign, then follow through with the termination.
Rule #9 Time it right
Time the discharge meeting for an appropriate time that will not disrupt your practice, staff and patients, and which avoids uncomfortable confrontations between the terminated employee and co-workers. Have a second "management level" person (office administrator, associate dentist) with you as a witness to what was said, to guard against fabricated claims of discriminatory or derogatory comments.
Rule #10 The final step
Make sure to retrieve the office key or any other practice property. Instruct them on where to go following the meeting (remind them to clean out their desk or locker, etc.). Advise them of when they will receive their final paycheck or give it to them immediately. Give them a copy of the termination or resignation form and keep the original for their employee file. Make sure that the termination/resignation date is recorded even if the employee refuses to sign the form.
Rule #11 When in doubt
If you have any doubt about the potential liability of your actions, please call a qualified employment attorney. Preventative maintenance is always worthwhile. Frequently, an interim step short of discharge can solve a problem or insulate a later discharge decision from claims of impropriety.
Ken Smith is Vice President of Peak Performers, Inc. an organization specializing in supporting the business consulting and staffing needs of dentists and their practices. With over twenty years experience in the health care field, Ken's background includes supervising the operations multiple dental practices as well as work in the optometric and veterinary fields. Ken is experienced in the business side of practice management and is skilled in the areas of human resource management, interviewing and recruiting, customer service as well as revenue growth. To contact Ken visit http://www.peakdental.com
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