As today’s historically high unemployment rates suggest, most people know someone who has endured the experience of losing a job. George Clooney’s portrayal of downsizing expert Ryan Bingham in the film Up in the Air has become something of a cultural touchstone—the employer’s paid representative coolly providing the bad news of imminent unemployment. However, the reality for most businesses—including medical practices—is that the business owner or another employee is tasked with the uncomfortable role of terminator. If the termination is handled improperly, it may give rise to a claim by the former employee against the terminating employer. In fact, wrongful termination charges filed with the United States Equal Employment Opportunity Commission (EEOC) rose last year for the seventh consecutive year.
Below are some key principles that will help facilitate terminations that bring cost-effective finality to the employment relationship.
The difference between a termination that gives rise to a postemployment dispute and a termination that brings quick closure is often in the planning. Accordingly, summary termination in response to something that just happened should be a very rare event. Even in the case where an employee’s conduct clearly justifies immediate termination, taking some time to plan and deliberate the termination is advisable.
The ability to terminate quickly and with clear legal basis starts at the beginning of the relationship. Well-thought-out employment-related documents (e.g., employment agreements, employee manual/handbook, detailed job descriptions, disciplinary memos, and evaluations) should tell the story of why the relationship ended, providing a contemporaneous record of the terms and conditions of employment, basic expectations of employee performance, the employee’s actual job performance, the reason for the termination decision, and the postemployment obligations of the employee (e.g., restrictive covenant and confidentiality) and the employer (e.g., the final paycheck and accrued vacation time).
Often, however, while the need for termination is obvious, employment-related documents will not be as clear as the employer wishes them to be. Taking the time to review your practice’s policies and procedures and the employee’s personnel file (rather than relying on what you believe the policies, procedures, and personnel file to say) before informing an employee of the decision to terminate will provide valuable context in deciding the best way to end the employment relationship.
The employer should consider the best way to transition the outgoing employee’s tasks with minimal disruption to the business. A termination that leaves you shorthanded may be necessary in some situations, but many terminations can be eased into to mitigate disruption to practice operations. Further, an employer should consider the impact of an employee’s departure on patients and the public image of the practice. Sometimes, employment agreements will provide protection against unfair competition, the unauthorized disclosure of confidential information, and disparagement in the community. Other times, no such protections are in place. The employer should envision what the day after termination will look like before proceeding with the termination.