Terminations for Cause and Summary Offenses

How long do I have to terminate an employee after a final incident occurs that violates prior warnings?

The simple answer is, The sooner the better. Companies' termination decisions should occur as soon as possible after management has completed its internal fact-finding investigation. Final termination decisions are necessary after a summary offense such as gross insubordination, theft, or fraud occurs or after a worker violates a final written warning in the progressive discipline process.

Your failure to terminate an employee very soon after the event may be interpreted by a court as an acceptance of the employee's conduct. A plaintiff's attorney may argue that you condoned the behavior by failing to act on it within a reasonable amount of time and that you should consequently be precluded from changing your mind at a later, more convenient date.

Since delay of more than a few days could imply an acceptance of the misconduct or substandard job performance, your subsequent discharge of the employee could be challenged. Remember that you can be held to have violated the implied promise of good faith and fair dealing if your decision to summarily discharge the worker appears to be just a pretext, capricious, or unrelated to business needs.

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On the other hand, it is sometimes difficult to conduct an investigation and reach a conclusion within a day or two after a precipitating event. If you meet with an employee regarding a manager's complaint and more witnesses will need to be polled and additional evidence will need to be gathered, place the employee on a paid investigatory leave. Tell the employee that the investigation may result in a termination. Inform the individual that you will call him at home with any questions that surface and keep him abreast of the pending investigation. Finally, let the person know that you will ask him to return to your office once a decision is made so that it can be discussed face-to-face.

In addition, you may plan to terminate an individual on a Tuesday morning, and that person may call in sick that day. In such cases, keep the employee on the payroll until she returns to work. The day she arrives should be the ultimate terminate on date.

Finally, understand that not all companies are able to cut final checks on the same day that they're requested. If your organization requires twenty-four hours to process final checks, you should still meet with the employee on the day she returns to work in order to terminate her. However, depending on payroll rules in your state, you may need to ask her to leave the company premises but keep her on the payroll for an additional day.

For example, in California, if the employee calls in sick on Tuesday and Wednesday but returns to work on Thursday, you should meet with her on Thursday to conduct the termination meeting. Inform her, however, that payroll will need twenty-four hours to cut the check, so she'll actually be paid through the end of business on Friday. This way you'll meet California's wage and hour regulations that stipulate that employees are to receive their final wages on the day of termination.

Other states do not require that workers receive final wages on their termination date. Instead, they provide employers with more flexibility by allowing companies to pay employees' final wages at other intervals—for example, by the next due date in the pay cycle. Learn your state's, county's, or city's regulations regarding final payment of wages. The lesson here, however, is to be sure to keep people on the payroll for additional time so that you avoid violating any wage and hour regulations. After all, you may be challenged for wrongful termination: You don't want to add to your liability or potentially show a jury that you were sloppy in such basic matters as getting people their final check on time.

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