Terminating an employee can be one of the most difficult and delicate tasks for an employer. Whether the termination is due to performance issues, organizational restructuring, or the employee's misconduct, it's essential to make sure that the process is handled lawfully and ethically.
At Drew Gaddis, Attorney at Law, I'm dedicated to helping business owners in Doral, Florida, and the surrounding areas terminate employees correctly. Florida's “at-will” employment means that employers generally have the right to terminate employees at any time, for any legal reason.
However, even in an at-will employment state, there are legal protections that employers must be aware of to avoid claims of wrongful termination, discrimination, retaliation, or violation of contractual obligations.
What Is Florida's At-Will Employment Doctrine?
Florida is an at-will employment state, which means that, in the absence of an employment contract or union agreement, an employer can terminate an employee for any reason, at any time, as long as the reason isn't illegal. Similarly, an employee can leave the job without notice or cause.
However, at-will employment doesn't provide the right to terminate an employee for any reason. There are significant exceptions to this doctrine, including:
Discrimination: You can't terminate an employee based on race, color, national origin, sex, age, disability, religion, or other protected characteristics as defined by federal and state law (e.g., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Florida Civil Rights Act).
Retaliation: An employee can't be fired in retaliation for engaging in protected activities such as filing a discrimination claim, whistleblowing, taking leave under the Family and Medical Leave Act (FMLA), or participating in an investigation.
Violation of public policy: Employees can’t be terminated for reasons that violate public policy, such as firing someone for reporting illegal activities or refusing to engage in illegal conduct.
Breach of contract: If the employee has a contract or is part of a union agreement, terminating them in a way that violates the contract can lead to legal consequences.
Understanding these exceptions is crucial to avoid potential lawsuits for wrongful termination. Documenting issues with your employee's performance or conduct may also be beneficial when the time comes for you to dismiss them because it can help dissuade the idea that they were wrongfully terminated.
Why Document Performance or Conduct Issues?
In Florida, documentation serves as both a protective measure and a tool for consistency. By keeping a record of any performance reviews, warnings, and disciplinary actions, you can show that the termination was based on legitimate and consistent reasons, rather than on discrimination or retaliation.
There are a few key ways you can document performance and conduct issues:
Regular performance reviews: Conduct regular performance evaluations and document any areas where the employee isn't meeting expectations. This provides an objective basis for later decisions regarding the employee's performance.
Written warnings: If performance or behavior issues persist, issue written warnings. These should detail the nature of the issue, the expectations for improvement, and any steps the employee needs to take. Keep a copy for the employee’s personnel file.
Progressive discipline: Many employers adopt a progressive discipline approach, where the employee is given multiple opportunities to correct their behavior before termination. This typically includes verbal warnings, written warnings, and, if necessary, suspension or final warnings before termination.
Performance improvement plan (PIP): If the employee's performance is significantly lacking, consider placing them on a formal performance improvement plan (PIP). A PIP outlines specific goals, timelines, and expectations for the employee's improvement. This not only provides a clear opportunity for the employee to improve but also strengthens your position if you need to justify the termination later.
The more documented evidence you have of performance or behavioral issues, the more defensible your termination decision will be in the event of a legal challenge. However, before proceeding with the termination, it's important to review any applicable employment policies, handbooks, and contractual agreements.
Review Employment Policies and Contracts
Policies and agreements may contain provisions that impact the termination process, such as specific procedures for layoffs, requirements for advance notice, or stipulations for severance pay.
Some examples of these documents include:
Employment contracts: If the employee has an employment contract that outlines the conditions for termination, you must adhere to those terms. Violating the terms of a contract could result in a breach of contract lawsuit.
Employee handbook or policies: Your employee handbook may specify the procedures for discipline and termination. These policies often outline what is expected in terms of employee behavior and the steps for addressing issues. Consistency in applying these policies is critical to avoid claims of unfair treatment.
Severance agreements: If applicable, you may need to negotiate and offer a severance package. Severance agreements typically include an agreement that the employee won't sue the company, in exchange for a financial settlement. However, the severance agreement must comply with state and federal laws to be enforceable.
By reviewing these documents, you can help make sure that the termination is consistent with any legal obligations or internal procedures that apply to the situation.
Stay in Compliance With Federal and State Anti-Discrimination Laws
Under both federal and state laws, terminating an employee based on their protected status is illegal. In Florida, employers must comply with federal laws, such as:
Title VII of the Civil Rights Act of 1964: Prohibits discrimination based on race, color, religion, sex, or national origin.
Americans with Disabilities Act (ADA): Prohibits discrimination against individuals with disabilities and requires reasonable accommodations.
Age Discrimination in Employment Act (ADEA): Protects employees over the age of 40 from age-based discrimination.
Family and Medical Leave Act (FMLA): Protects employees from being fired for taking qualified medical leave.
Florida also has its own Florida Civil Rights Act, which extends protections to employees for discrimination based on race, color, national origin, sex, disability, and religion.
To assure that a termination is lawful, make sure that there's no discriminatory motive behind the decision. If the employee belongs to a protected class and has engaged in any protected activity (e.g., filing a discrimination complaint), the termination should be carefully reviewed to help make sure it’s not retaliatory in nature.
Once you've reviewed all the necessary documentation and legal compliance, it’s time to schedule the termination meeting.
Conduct a Private, Respectful Termination Meeting
This meeting should be done in private, with respect and professionalism. Some key steps to help lead you through this process include:
Choose the right setting: The meeting should take place in a private setting, free from distractions. Ideally, it should be held at the end of the workday or at a time that minimizes disruption to the rest of the office.
Keep it brief and professional: Focus on the facts and avoid getting into personal criticisms or emotional discussions. You should explain the reason for the termination, citing performance issues or violations of company policy. If the termination is for a cause, explain the specific reasons, referring to prior documentation, such as performance reviews or warnings.
Offer an opportunity to ask questions: Allow the employee to ask questions. While you don’t have to justify the decision, providing an opportunity for dialogue helps to assure clarity and respect.
Provide exit information: Discuss the logistics of the termination, such as the final paycheck, benefits, return of company property, and any severance packages. If applicable, provide information about unemployment benefits and how they can access them.
Be compassionate but firm: Terminations are difficult for both parties. While you should be understanding and empathetic, it’s also important to remain firm and clear about the decision. Avoid offering false hope or engaging in arguments.
The process of terminating an employee is never easy, but following the right procedure and having the correct information on hand can make the situation easier for everyone involved.
Documentation, Severance, and Post-Termination Issues
After the termination meeting, it's important to make sure that all the final steps are completed thoroughly. Be sure that you have all of these documents on hand:
Document the termination: Keep a record of the termination meeting, including the reasons for termination and any severance or benefits provided. This documentation is crucial if you're ever required to defend the termination in court or before a government agency.
Final paycheck: Florida law requires that employees receive their final paycheck on their last day of work, unless there's a contractual agreement specifying otherwise. The final paycheck must include any accrued wages, unused vacation, or other compensation.
Severance agreements: If you're offering a severance package, make sure to provide the employee with the necessary documentation and have them sign any necessary agreements. Be clear about any confidentiality clauses, non-compete clauses, or waiver of claims in the severance agreement.
COBRA and benefits: If the employee was covered under company health insurance, provide them with information about continuing benefits under COBRA (if applicable).
Remember when you're assembling these documents that you want to include as much information about the termination as possible to help reduce the risk of discrimination claims.
Avoid Retaliation and Discrimination Claims
Even in an at-will state like Florida, an employee can't be terminated for engaging in protected activities, such as reporting illegal conduct, filing a discrimination complaint, or taking family leave.
If you suspect that the termination could be perceived as retaliatory, it’s important to consult with legal counsel. Terminating an employee is a serious decision that requires careful consideration of the law in Florida.
Contact an Attorney Today
If you need assistance with employment law and termination in Doral, Florida, or the surrounding areas of South Florida, be sure to reach out to me, Drew Gaddis, Attorney at Law.
