Firing

Last month’s column on good hiring practices, which stressed the importance of replacing marginal employees with excellent ones, triggered an interesting round of discussion. “Isn’t it true,” asked one contributor, “that most physicians tolerate marginal employees because it’s less painful than firing them?”

Indeed it is. Firing someone is never easy, and it is particularly tough on physicians. Sometimes, however, it is unavoidable if you want to preserve the efficiency and morale of your other employees, as well as your own.

Before you do it, however, be sure that you have legitimate grounds, and assemble as much documentation as you can. Record all terminatable transgressions in the employee’s permanent record, and document all verbal and written warnings. This is essential. You must be prepared to prove that your reasons for termination were legal.

Former employees will sometimes charge that any of a number of their civil rights was violated. For example, federal law prohibits you from firing anyone because of race, gender, national origin, disability, religion, or age (if the employee is over 40). You cannot fire a woman because she is pregnant or recently gave birth. Other illegal reasons include assertion of antidiscrimination rights, refusal to take a lie detector test, and report of OSHA violations.

You also can’t terminate someone for refusing to commit an illegal act, such as filing false insurance claims, or for exercising a legal right, such as voting or participating in a political demonstration. You cannot fire an alcohol abuser unless he or she is caught drinking at work, but many forms of illegal drug use are legitimate cause for termination. Other laws may apply, depending on where you live. When in doubt, contact your state labor department or fair employment office.

If a fired employee alleges that he or she was fired for any of these illegal reasons and you do not have convincing documentation to counter the charge, you may find yourself defending your actions in court. If you anticipate such problems, you can ask the employee to sign a waver of future litigation in exchange for a concession from you – such as extra severance pay or a promise not to contest an unemployment application. Also, consider adding employment practices liability insurance (EPLI) to your umbrella policy, since lawsuits are always a possibility despite all efforts to prevent them.

Once you have all your legal ducks in a row, don’t procrastinate. Get it over with first thing on Monday morning. If you wait until Friday afternoon (as many do), you will worry about the dreaded task all week long, and the fired employee will stew about it all weekend.

Explain the performance you have expected, the steps you have taken to help correct the problems you have seen, and the fact that the problems persist. Try to limit the conversation to a minute or two, have the final paycheck ready, and make it clear that the decision has already been made, so begging and pleading will not change anything.

I’ve been asked to share exactly what I say, so, for what it’s worth: “I have called you in to discuss a difficult issue. You know that we have not been happy with your performance. We are still not happy with it, despite all the discussions we have had, and we feel that you can do better elsewhere. So, today, we will part company, and I wish you the best of luck in your future endeavors. Here is your severance check. I hope there are no hard feelings.”

There will, of course, be hard feelings, but that cannot be helped. The point is to be quick, firm, and decisive. Get it over with and allow everyone to move on.

Be sure to get all your office keys back – or change the locks if you cannot. Back up all important computer files, and change all your passwords. Most employees know more of them than you would ever suspect.

Finally, call the staff together and explain what you have done. They should hear the real story from you, not some distorted version via the rumor mill. You don’t have to explain your reasoning or divulge every detail, but do explain how the termination will affect everyone else. Responsibilities will need to be shifted until a replacement can be hired, and all employees should understand that.

If you are asked in the future to give a reference or write a letter of recommendation for the terminated employee, be sure that everything you say is truthful and well documented.

Dr. Joseph S. Eastern