Terminating Employees: Best Practices and Red Flags to Consider

Todd A. Ward, PhD, BCBA-D

bSci21Media, LLC

John Engers

Compliance Counsel & President of Filice Tri-Valley

Jamie Pagliaro & Dawn Mackey

Rethink Behavioral Health

As an aspiring Applied Behavior Analysis (ABA) entrepreneur, you might dream of one day running your own business, being your own boss, and fulfilling a mission and vision that is personally meaningful to you. When you start, your team is small and committed to the vision of the company, but as you scale, things don’t always go as planned. In all likelihood, you will eventually have to let someone go.

But before you start writing up termination notices, check out the recent webinar by John Engers, an attorney and President of Filice Tri-Valley, hosted by Dawn Mackey of Rethink.  John provided a comprehensive overview of best practices for terminating employees, in addition to red flags you should consider when seeking out legal counsel.  Below are two predominant themes from his talk.

Understand “Employment At Will”

Employment at will is commonplace in the United States, and refers to the power of employers to fire their employees for any reason, with or without cause.  In practice, however, Employment at Will isn’t so cut and dry, according to John.  Many exceptions to the rule exist that, if not treated properly, could put your company at risk for a lawsuit.

One major group of exceptions concerns protected categories of employees.  Protected categories are “attributes that employees have that cannot be changed and for which you can’t terminate”, according to John.  Termination based on race, age, sex, and a host of other conditions are examples of protected categories, along with many others. 

The tricky part as an employer comes when you must terminate someone who is the sole member of a protected category in your company.  From the outside, such a termination could appear discriminatory even though it may have been justified.  To guard against a wrongful termination suit, you must take steps to ensure proper documentation is retained from the point of hire to termination of the employee.  As John mentioned, “it doesn’t matter what actually happened, what matters is what you can prove.”  If you can’t prove that a protected employee was terminated for justified reasons (e.g., poor performance), then your company may be at risk.

Avoid Termination Problems at the Point of Hire

To help prevent wrongful termination suits, John recommends having all of your new employees sign a statement indicating that they are employed on an “at will” basis.  Moreover, when you distribute employee handbooks, it is best practice to have your employees sign a written acknowledgement that they have received and understood the contents of the handbook.

John also cautions against setting up rigid “progressive discipline” policies in your handbook.  If a suit finds that your company deviated from the progression as outlined in your handbook, or if you failed to document each disciplinary step, you could be liable for wrongful termination.  Instead, John recommends giving yourself an out as an employer.  In your handbook, include more general verbiage such as “may lead to dsciplinary action up to and including termation of employment”. 

To hear all of John’s termination tips, be sure to join Rethink to view his full presentation. 

Do you have any termination best practices that have worked for your ABA agency?  Let us know in the comments below, and be sure to subscribe to bSci21 to receive the latest articles directly to your inbox!

Todd A. Ward, PhD, BCBA-D is the President and Founder of bSci21Media, LLC, which owns the top behavior analytic media outlet in the world, bSci21.org.  bSci21Media aims to disseminate behavior analysis to the world and to support ABA companies around the globe through the Behavioral Science in the 21st Century blog and its subsidiaries, bSciEntrepreneurial, bSciWebDesign, bSciWriting, bSciStudios and the ABA Outside the Box CEU series.  Dr. Ward received his PhD in behavior analysis from the University of Nevada, Reno under Dr. Ramona Houmanfar.  He has served as a Guest Associate Editor of the Journal of Organizational Behavior Management, and as an Editorial Board member of Behavior and Social Issues.  Dr. Ward has also provided ABA services to children and adults with various developmental disabilities in day centers, in-home, residential, and school settings, and previously served as Faculty Director of Behavior Analysis Online at the University of North Texas.  Dr. Ward is passionate about disseminating behavior analysis to the world and growing the field through entrepreneurship. Todd can be reached at [email protected]

John Engers began his career in employment law and business defense in Fremont, CA before joining Filice Insurance Agency as In-House Counsel in 2012.  Filice is one of the largest benefits brokers in the state of California, with over 2,500 clients. For the last five years, he has counseled Filice’s clients on matters of employment law, HR best practices, and the Affordable Care Act.  He is now an owner at Filice and runs their San Francisco and San Diego offices.

Rethink Behavioral Health provides the tools every behavioral health provider needs to manage their practice and deliver quality ABA treatment effectively & efficiently. Rethink’s easy to use web-based software streamlines client care with sophisticated yet intuitive tools for both clinicians & administrators. For more information, visit http://www.rethinkbh.com.

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