Determining whether or not to terminate an employee is one of the most difficult decisions a supervisor or city leader has to make in the course of their career. Employment termination should be done at the right time for the right reasons, and many things need to be taken into consideration. A strong recommendation is to communicate with your human resources office or city attorney prior to taking any termination action against an employee.
Does the Employee have Civil Rights Protection? Termination for Inadequate Performance
To justify discipline or termination based on performance, employers must ensure they have satisfied criteria in order to provide the employee sufficient opportunities to succeed:
- Setting clear expectations including reasonable performance standards is the first step to set your employee up for success.
- Should an employee’s performance become inadequate, supervisors need to document this in writing to the employee and provide expectations for adequate performance. The employee needs to be notified that their performance is inadequate and if their performance does not improve and remain at an acceptable level, they may face consequences including termination.
- The employee needs a reasonable opportunity (timeframe is case by case) and support to improve their performance to an acceptable level prior to taking any adverse actions.
Termination for Misconduct:
While some employees may have specific protections due to their status (civil service, union contract, etc.), the general guidelines for terminating an employee due to misconduct are as follows:
- Conduct an investigation;
- Provide the employee details of the investigation and notice of their pending termination;
- Provide them an opportunity to respond;
- Provide notice of the termination and any other information required due to the employment type (such as public records notice).
- Be aware of any appeal rights the employee may be afforded and provide that information to the employee.
- Note: the above are general guidelines. It is imperative that you include your human resources department or city attorney in the conversation about termination prior to taking such action.
Gross Misconduct
In some cases, such as workplace violence, fraud, or gross negligence to name a few, you do not have to take all of the steps listed above. Should the misconduct be severe enough to breach the trust between the employer and employee, terminations can be immediate. But you still need to involve human resources or city attorney in the conversation before taking action.
Probationary Period
If your employee is serving a probationary period and there are questionable conduct or performance concerns, take the time to observe the employee before allowing the probationary period to expire. While it can be possible to train an employee on parts of their job that they need assistance with, they should have the skillset required to be able to perform the essential functions of the position they were hired to perform and they should not be engaging in misconduct that is contrary to being a suitable employee. In cases where an employee is serving a probationary period, it is usually easier to terminate them during this time when compared to termination after the probationary period has expired.
Discrimination
Employees are protected from discriminatory practices, including the termination process. The Age Discrimination Act, Americans with Disabilities Act, and Title VII of the Civil Rights act are some of the Federal laws that protect employees from discriminatory termination practices. While some city employees are considered “at-will” employees, meaning their employment can be terminated at any time for any reason, you still need to be cognizant of the possibility that your termination could be seen as discriminatory by a third party, such as the Iowa Office of Civil Rights. Ensuring sound reasoning for a termination decision that is based on just cause will be your primary defense against an employee’s appeal of the termination decision.
Just Cause
Just cause is a concept in employment law that refers to whether an employer had a good reason or “just cause” to terminate an employee. Ensuring you have just cause for termination will support defenses against discrimination or even help avoid paying unemployment compensation.
Other Protections
Many public employees have protections against terminations and you need to be cognizant of any category your employee may fall under. Employees in a union, covered by an employment contract, veterans, active military, civil service employees and peace officers are among some of the employees who have guidelines for proper termination.
In all but the most egregious cases of gross misconduct, it is imperative to ensure an action is taken for the right reason, make sure to bring the concerns to the employee’s attention in a timely manner and to document the conversation and other attempts to correct the problem in writing to the employee.
Public Records
Under Iowa’s Open Records law, in 22.7 (11) (a) (5), termination records related to public employees are confidential unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information.
Seek the Advice of Others
The above information is intended as general guidance and not meant to be professional legal advice. Seek out those within your organization who have the knowledge to assist with such serious matters as employment termination.
