When to terminate or demand a resignation.

It’s been 30-days since the conversation I described yesterday. However, there’s been no improvement in the employee’s performance or behavior. What to do?

It's time to have a second meeting, similar to the first, but this time spelling out the consequences for the employee and the company if the pattern continues. Consequences should include a written warning that continued non-performance or unsatisfactory behavior will be grounds for demotion or termination if not corrected in the next 30-days. Again, keep this meeting positive and to the point. Offer to assist in any way you can. After all, your job is to help the employee be successful, not to punish them or make them fail. And you should have some ownership of the issue since you hired this person in the first place. Good employees will appreciate the feedback because they really want to do a good job. Weak employees will give excuses time after time about what got in the way. So you have to be clear and get agreement that next time the desired results will be achieved, no matter what - or else.

If there’s no further change in the next 30-days, it’s time to act decisively. But first, I suggest reviewing the following checklist:

• Was a specific rule or policy violated and does the violation warrant termination?
• Was the employer’s rule or policy reasonable?
• Can you produce a copy of the rule or policy?
• Have other employees been held accountable for the same rule or policy? Has it been consistently applied in the past?
• Can you prove the employee knowingly violated the rule or policy?
• Has the employee complained of harassment or unfair treatment?
• Has the employee recently filed a workman’s compensation claim?
• Is the employee about to vest in certain benefits?
• Has the employee recently complained about a company wrongdoing or safety issue?
• Are there any current grievances or complaints pending?
• Were any promises made verbally or in writing to this employee by senior management?
• Is there any evidence of discrimination based on age, sex, race, religion, national origin, disability or any other legally protected characteristic?

Discharge interviews should be prompt, private, without blame, and should include a witness to confirm what took place. Don't say too much. Above all, avoid inflammatory language or anything you can't document. Certain terms sound inherently defamatory, such as "thief," "stealing," or "drug abuse." Use non-inflammatory descriptive terms that can be documented, such as "failure to properly account for items entrusted to his care", or "violated drug-free workplace policy by testing positive for [whatever]." Most states don't require an employer to give an explanation of the reason or reasons for discharge, and an employee isn't required to give an explanation for a resignation. If given, make the explanation brief and to the point. It's good practice to let one specific person in the company carry out all terminations so you minimize the risk that individual hard feelings might inadvertently result in statements that end up sounding defamatory in court.

In many cases, especially with professional employees, a negotiated resignation is better than a termination. In these cases, make sure you get a signed agreement that includes:

• a release of liability
• employee can’t reapply
• confidentiality of business information
• assignation of patents
• signed non-compete
• agreement not to steal staff

Termination or resignation is always a last resort remedy. You take it because the employee gives up on you, not because you gave up on them.

It’s my experience that employers tend to wait too long to deal with sub-standard performance issues, hoping they’ll somehow fix themselves or the problems will go away. This very seldom happens. If the desired behavior doesn’t change and you don’t give feedback, feedback was received anyway. Most people know when they’re not meeting expectations. When nothing is said, it’s interpreted as 'it isn’t a big deal.' By failing to address repeated failures, you set a bad example for others and discourage your best employees who are wondering why you don’t take appropriate action.