The sad truth is that sometimes employees don’t work out. Maybe restaurant work just isn’t for them. Maybe you can’t afford them. Whatever the reason, at some point, you will have to fire an employee, and doing so opens you up to all sorts of complications. Not only is it always hard on a personal level, but there are laws regarding the firing process. So, how do you do this in the most tactful, lawful and useful way?

1. Remember the Law

In most states, employees are considered ‘at will’ unless otherwise stated. This means that, unless you told the employee that they will be employed for a certain amount of time or that you would only fire them for a ‘good’ reason, you can fire them whenever for pretty much any reason. There are exceptions that are considered illegal, and they are:

• joining a union
• age, race, national origin, religion, gender, physical disability, or sexual orientation
• pregnancy
• protected political activity
• whistleblowing or generally refusing to comply with illegal situations, such as unsafe working conditions or wages that are below the minimum.
• refusing to take a lie detector test

There are other reasons that you can’t use, but they change by state. The important thing to remember is that you need to tell everyone from the start, and have written on all relevant paperwork, that employment at your restaurant is ‘at will.’

2. Administering The Pink Slip

It is a good idea to have a written process for disciplining and firing employees in your employee handbook. It should be flexible enough so that you can respond to an emergency, but clear so that it can be administered evenly. Basically, if you want to give one employee a warning before firing, you should have it written that the employees always get one warning before firing. Be as even-handed as possible, and follow the written protocol as closely as you can. A person should read the handbook and sign it when hired so that they have ample warning.

It is important to document the process and your reasoning for firing people. You want to have something to show outsiders that you are terminating someone for legal reasons and that no one has any grounds to complain. Give them a termination letter outlining what will happen. It never hurts to have the employee you are terminating sign an employment release form, either. It serves to give everybody a clear idea of what their rights are and what they agreed to. It is also yet another way to keep employees from suing later: they signed an agreement saying they were fine with what happened.

You don’t need to make a scene about firing someone, and it is, in fact, best to keep it short and simple. Tell the employee the bad news upfront in a professional and empathetic matter. Give a short explanation, but avoid going into detail or trying to justify your decision. It only invites arguments and gives an employee something to work with if they want to explore legal actions. Try to be as discreet possible and make sure you have their supervisor and manager present when the person is being informed so that the employee sees that it was a group decision. There really isn’t a good time to fire somebody, but if you can, do it as quickly as possible and in a way that doesn’t allow the fired employee to interact with other employees right after termination. This can go a long way toward making a smooth transition. Many recommend the beginning of the shift.

Pay your former employee what they are due within the time frame allowed by your state. Are they due vacation time? Did they work three days into the new pay period? Give them what you owe and tell them if they are eligible for unemployment insurance. They may be eligible for continued health insurance, too, if you have more than 20 employees and provide health insurance. You must give them the chance to keep their coverage, provided they keep paying their premiums. Remember to get any company property that you might have given them, reimburse them for any expenses they went to for the company, and give them a contact number for questions about benefits.

3. Afterwards

Afterward, if they want letters of recommendation, it is best to remember: “If you can’t say anything nice, don’t say anything at all.” If someone left the company on bad terms or got fired for serious reasons and a future employer asks about that person, only reveal the dates of employment, salary and job title. Otherwise, you are open to defamation charges.

You can offer to help someone find new employment, and it is a good idea to provide some relief in the transition. You are not obliged to provide any type of severance package unless you promised one to the employee or it is in their contract, but if you normally provide some benefits after firing, you will find it easier to keep the former employee’s good will.

Last but not least, make sure you have someone ready to take over the fired employee’s position and arrange to ease the transition for the remaining employees. You don’t want a stoppage in work.

Even the gentlest of firings are unpleasant. Follow these tips to make it ‘merely’ unpleasant.

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