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Employment Law/Terminating an employee

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Question
I have an employee whom has worked with us about a month.  He was hired in on a probationary period to see if he actually has the skill level we need for the job.  He is not working out and I would like to let him go.  However, since he was hired he has disclosed several medical issues he has (non-work related) which is hindering his ability to do his job and has had days off already because of his health issues.  May I terminate him legally for his lack of performance and lack of skills without worrying about a law suit arising from this employee possibly stating we terminated him because of his health issues?  Is there a proper procedure I should follow or steps to follow prior to terminating him to lessen the chance of a potential law suit?

Answer
You are right to be concerned about this. Here are the steps I would take, and do take before terminating an employee, and I do it for all unless there is a compelling reason to terminate such as breaking rules or other criminal activity.

1. Verbal warning about performance issues

2. Written warning about performance issues

3. Termination because of performance issues.

These should be done in no less than 2 week interviews if possible. Also all documentation on prior performance issues should be documented with the issue and the date. You can present these to the employee at the warning.They also need to be documented in the files for the Department of Labor.

Shirley

Employment Law

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Shirley McAllister, CPP, PHR

Expertise

I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).

Experience

30 years in Payroll and Human Resources

Organizations
SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

Education/Credentials
PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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