What are your answers to 18 questions regarding termination?

As a human resources employee, tribal council member or department director, have you witnessed an employee termination and thought the tribe should have done more to keep the employee?  There are times when an employee is not interested in keeping a job and their poor performance is strong evidence of that weak desire, but on the other hand, there are instances where employees want the job and the employer has failed to create a system which makes termination less likely.  As a human resources employee or tribal administrator, are you interested in having a direct impact on creating a workplace which is more fair to employees while at the same time limits potential employer liability in terminating an employee?  If you answered in the affirmative, please consider answering these questions and measure whether you can do more to keep good people.

When you are done, will you share these questions with your directors, managers and supervisors and help them explore their answers?

1.  Have you clearly defined your expectations?

Employers have a moral obligation to define employee expectations on the first, second and last day of employment.  Employers define employee expectations through employee handbooks, policies, standard operating procedures, job descriptions, orientation, performance agreements, performance evaluations and other tools.  Long before termination is contemplated, take the steps necessary to define your expectations and only if employees fail to meet those expectations should termination be considered.

2.  Do you have a training program?

After defining employee expectations it is necessary to give employees the skills necessary to succeed in your workplace.  Every workplace is different and management needs to define clear expectations through orientation (an employees first training session), weekly or monthly meetings (an employees second, third and fourth training sessions) and through formal training.

3.  Do you have evidence that the employee received a copy of the rules?

A signed acknowledgement or receipt of the employee handbook, job description and standard operating procedures is strong evidence that the employee has received a copy of the relevant rules.  Thereafter, when those documents are modified, getting the employee to sign off on the modified version is a good practice as well.

4.  Has the employee consented to the rules?

Because of disrespectful federal law, tribal employers need to obtain written consent from all employees to the employer’s ability to define, interpret and enforce the rules of the workplace.  A great opportunity to get employee consent is in the same document wherein the employee acknowledges receipt of the handbook.  Consider getting the employee to consent to the “exclusive” jurisdiction of the tribe.

5.  Have you documented the employee’s behavior?

The impact of politics of any workplace is reduced when clear expectations are defined and employee behavior is measured against those expectations.  If employees fail to adhere to those clear expectations, supervisors need to record those events.  In addition to recording or documenting the behavior, supervisors need to tell the employee about the behavior, how to correct it and the consequences for failing to correct it.

6.  Have you given the employee an opportunity to improve?

Before we discuss the formality of progressive discipline, has common sense intervened long enough to give employees an opportunity to embrace new rules?  When human resources is at the intersection of important employment decisions like termination, there is someone at the table not only applying the rules but measuring the reasonableness of the rules in that specific circumstance.  Sometimes employees deserve a second and third chance to get it right and when you are part of the team, consider whether the decision is fair and reasonable.

7.  Have you defined progressive discipline and utilized it?

For some workplace offenses like theft, immediate termination is reasonable and necessary.  But for many other workplace offenses, a warning or more before termination is fair to the employee and consistent with due process.  Including a flexible progressive discipline policy in the handbook or manual is a good practice.

8.  Have you considered and executed a last chance agreement?

Beyond progressive discipline, employers will give employees a last opportunity to follow the workplace rules and document that agreement.  The last chance agreement defines the rule, the expected behavior and the consequences (termination) for failing to perform.

9.  Has your employee given you reason to consider other reasons for poor performance?

Poor performance may stem from a medical condition which interferes with the employee’s productivity and in some instances the medical condition may trigger some rights for the employee.  Likewise, an employee who has exceeded expectations for years suddenly is on the verge of termination.  Is it the employee’s alleged poor performance or the supervisor’s hostility in retaliation for complaints about sexual harassment?

10.  Is an investigation a good idea before termination?

In some instances an investigation is a good idea to determine if termination is appropriate.  There are plenty stories where supervisors know Employee A has stolen money, harassed the clerk or is taking drugs during the noon hour when in reality it is Employee B.  Is your perception of the truth accurate and do you have the evidence to support your version?  An investigation may help you better understand the facts and protect the employer from claims of wrongful termination.  Finally, an investigation need not always consume weeks of workplace sleuthing when a handful of interviews gets to the point.

11.  Do you have a meaningful grievance procedure?

An opportunity to be heard is a fundamental part of workplace due process.  Whether the employer provides a peer review panel, tribal council review or peacekeeping, employees deserve a meaningful opportunity to tell their side of the story.  In most instances tribal employers will support their supervisors through the grievance process, but in some instances, when the employee tells their story, it is the first time the truth emerges and the supervisor’s version is questioned.  Grievance procedures benefit both the employee and employer.

12.  Do you have the authority to terminate the employee?

A quick way to increase the risk of individual liability is to execute a personnel action notice terminating an employee when you do not have the authority to terminate employees.  Also, when employers limit authority to terminate, it impacts who qualifies as an exempt employee under the FLSA and may impact whether an employee is a primary management official or key employee for licensing purposes.

13.  What is the standard used for terminating the employee?

Whether the employment relationship may be terminated at-will, for cause, just cause or some other standard, understanding and operating under that standard is critical.  Moreover, who is applying the standard to the employee?  To limit the perception of politics in employment, the individuals who decide to terminate an employee should not be elected officials.  No matter the integrity of the process or the elected officials, terminations executed by tribal council are clouded by the perception, and sometimes the reality, of politics.

14.  Is there a witness to the termination?

When the employer’s representative communicates the termination to the employee, a supervisor level witness should be present for the entire conversation with the employee.  The meeting should be documented.  On the other hand, unless there is good reason, is the presence of a security guard really necessary?

15.  Are you ready to pay the terminated employee?

In addition to the final paycheck, do your policies clearly define whether terminated employees are entitled to the cash value of unused vacation, sick or paid time off?  Do you have a process for tracking employer property in the employee’s possession and the process for getting it back?  Is the employee entitled to severance pay?  A bonus?  Are you entitled to offset employer obligations against employee debts?  Also, make sure you issue the COBRA notice triggered by termination and inform the Gaming Commission.

16.  Are separation agreements a good idea in some instances?

Separation agreements which include the requisite release language can be valuable tools in limiting potential claims.

17.  Are you going to limit the terminated employee’s access to tribal lands?

Sometimes, tribal employers limit a former employee’s access to the gaming enterprise, government offices or in some instances tribal lands.  If you use and enforce these policies, tailor the limited access to protect what is necessary.  For example, precluding a terminated blackjack dealer from playing blackjack at your gaming enterprise for six months or a year is a good idea, but limiting the former employee’s access to the community center seems to be overzealous.

18.  Are you prepared for employees who may pose a risk to the safety of others?

The most difficult question last.  If you have any reason to believe that the employee poses a risk to themselves or others as a consequence of being terminated, take the steps necessary to secure a safe working environment.

Recommendation:  Once you have answered these questions, give yourself credit for the strong components of your system and set firm deadlines for improving those components which need improvement.  You have an opportunity to have an impact

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.