Since Montana is not an at-will state, employers must have good cause for firing an employee past the probation period. In general, good cause means that the employee did something wrong that affects the business, and that they have had a chance to fix it but didn’t. Good cause does not include “a feeling” about the employee, or “they just don’t fit in”; those things should be taken care of during probation.
While every employee problem is a little different, there are steps that should be used for most situations. (If an employee pulls a gun on a co-worker, then clearly you skip most of these, or apply them retroactively.) They are also good management practices, to make sure that employees have a chance to do their work well.
1. What rule is being broken? Can you articulate it? Rules should be appropriate to work and related to the safe, orderly, or efficient operation of the workplace; this includes things like rules of absenteeism or work procedures, as well as safety rules or regulatory requirements. They shouldn’t be unwritten rules (if the rule is important, write it down!) or rules that haven’t been enforced in a long time or that are enforced unequally. Write down the rule being broken and what evidence you have.
2. Alert the employee to the problem, with specifics of the rule being broken and what they need to do to fix it. Spell out the consequences, which should be commensurate with the problem; being late the first time warrants a milder reprimand than a flagrant safety violation. Give them a chance to explain their side of the story and ask what you can do to help them correct the problem; you or the company may be contributing to it in some way. Document the conversation in the employee’s personnel file.
3. Monitor the situation. Don’t assume that everything will go smoothly now; the employee may need help implementing changes or creating new habits. Check in regularly until things are going well.
4. If things don’t go well, continue to escalate the process as appropriate, following your employee manual and documenting every step of the way: what the employee did, why it was a problem, how you gave them a chance to correct it. Remember that if things really blow up, you will be explaining this to a jury. Use suspension as appropriate, especially if an investigation is needed.
5. If an investigation is appropriate (harassment or discrimination, theft or embezzlement, etc), find a credible, impartial investigator; this may be someone inside a large company or an outside investigator for a small company. Make sure the investigator talks to the employee as well as to any accusers or witnesses. Investigate before firing someone; evidence found after the case doesn’t justify the former firing, even if it would justify it now.
Obviously, any boss can fire an employee for any reason, and they will often get away with it. Conversely, any employee can sue for wrongful discharge no matter how egregious their behavior was. These guidelines come into play if a business needs to defend itself in a lawsuit; following them will make the defense attorney’s job much easier and make a favorable verdict more likely.
Thanks to Jim Nys for an informative presentation!