Firing Problem Employees Let go of employees tactfully and legally

Q: We hired a receptionist, and after a month on the job, we had some concerns about her general skills, lack of follow-through and organizational ability. During her first three months, she's missed several weeks of work because she was hospitalized and has had health problems-both physical and mental. After being evaluated by an agency and treated at a psychiatric hospital, she's back at work but very spaced out. If we'd been able to conduct her 90-day evaluation on schedule, she would've been let go. I feel bad about terminating her, but she clearly isn't what we need. I don't want any legal problems when we let her go. What should we do?

A: Most employment is "at will." This means that if the employee isn't working out, the employer can ask the employee to leave. Of course, if the employee has a written employment contract for a specific term, this doesn't apply. But few receptionists have employment contracts. You should also be aware that the laws in some states forbid "at will" firings, requiring the employer to have "good cause" for firing a worker.

Presumably, before you hired her, you explained the job requirements. The bottom line of any employer/employee relationship is this: We'll pay you X dollars a month; in return, you do this job. If a person is incapable of carrying out a job's basic functions, that person is no longer entitled to collect a salary, and the employer is free to look for someone who can do the job.

Let's look at what you need in a receptionist: someone who can greet the public, answer the phone and take accurate messages, do clerical tasks, and generally keep track of things. It sounds as if the person you hired, through no fault of yours, isn't up to the challenge. Yet you need someone who is. Solution? Probably another person, unless your current receptionist can pull herself together quickly.

Here are some tips on easing someone out who really isn't working out:

• Follow company protocol in documenting the worker's performance. You have a 90-day evaluation process. Have you been writing down incidents as they occur? If not, pull together a summary of your employee's accomplishments and problems.
• Consult your receptionist's job description or, if it doesn't exist in writing, make a list of all the vital job functions. This will give you something to compare your employee's performance against.
• Nonperformance of duty, negligence, habitual lateness and excessive absences are garden-variety reasons for termination. If you've made up your mind to let this person go, document your reasons when you meet with her. If your company has a severance policy, offer it to the employee if she qualifies.
• If your company has an employee manual, read through it for language that could be considered "promises" to an employee. For example, is there a minimum notice period before someone can be terminated?
• If your company has a policy for handling problematic employees, follow it to avoid repercussions. Is there a grievance procedure? An internal appeals process? Most smaller companies don't have such formalities, but if yours does, follow whatever termination process exists.
• Contact your state employment commission to see whether your state law has limits on terminating an employee.

Few things make employers quake more than laws that protect workers, whether that be civil rights acts or laws shielding workers with disabilities. But keep in mind that job qualifications still prevail: Protective legislation was never meant as a hideout for incompetents.

Figure out if there's any hope that your receptionist can learn to perform the job properly; if not, replace her. Don't let "lawsuitphobia" prevent you from finding a worker who'll get the job done.

It's good to fire bad employees. It's not so good to yap about how bad they were at unemployment hearings. Read "Don't Tell It To The Judge" for more tips on how to deal with problem employees.

Joan E. Lisante is an attorney and freelance writer who lives in the Washington, DC, area. She writes consumer-related legal features for The Washington Post, the Plain Dealer, the Spokane Spokesman-Review and the Toledo Blade (Ohio). She is also a contributing editor to LawStreet.comand ConsumerAffairs.com.
In her practice, Lisante is counsel to ConsumerAffairs.com and was counsel for Zapnews, a fax-based customized news service for radio stations. Previously, she served as Assistant District Attorney in Queens County, New York, and Deputy District Attorney in Nassau County, New York.

The opinions expressed in this column are those of the author, not of Entrepreneur.com. All answers are intended to be general in nature, without regard to specific geographical areas or circumstances, and should only be relied upon after consulting an appropriate expert, such as an attorney or accountant.