Terminating for Undocumented Poor Performance: What Are Your Options?

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Terminating for Undocumented Poor Performance: What Are Your Options?

There are many situations in which an employer would like an employee to be relieved of their duties but the situations do not necessarily present a well-documented, policy-violated, fireable offense. These situations, if acted upon incorrectly, could make the organization vulnerable to a lawsuit. This is probably a situation that many HR professionals would like to avoid at any and all costs.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

The first thing you can do is begin to document immediately. From there you have a couple of options moving forward:

1. Elimination of Position

Going the route of position elimination can work if done correctly and you aren’t in need of refilling the position in the near future. This gives you the option to relieve an employee of their position without the threat of wrongful termination. However, it would be wrongful termination if you were to fill that position again before the period of time ends set by the state.

2. Give an Official Written Warning

Giving the employee an official “final” written warning with an option for a performance improvement plan is setting the organization up to move forward properly for any future performance issues. This way, if the employee does not properly adhere to the performance improvement plan, it is cause for a clean break between the employee and the organization.

3. Offer a Separation Package

Offering the employee a separation package is a promising way to go if the employee is disengaged with the organization and is thinking about leaving soon anyways. This gives the employer the opportunity to relieve the employee in question of their duties and gives the employee the opportunity to leave with dignity and security as they move on to a new job search.

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