Every employee’s employment life cycle ends eventually, whether due to resignation, retirement, termination or other reason. In the dental office, any employee who separates should do so in a structured and professional manner with minimum disruption to the patients, staff and practice. Still, depending on what triggers an employee’s departure, separation can be an awkward situation for employers to navigate. Such discomfort can be lessened if clear policies and practices are in place.
In California, the employment arrangement is considered “at-will,” which means that in the absence of a contract, both the employer and the employee are free to end the employment relationship at any time, with no penalty being assessed to either party. The practice retains the right to terminate an at-will employee for any lawful, nondiscriminatory reason with or without notice. However, employers must be careful that their decision to terminate at will does not violate, or appear to violate, state or federal law. The termination should also be consistent with employee policies, practices and any other implied or actual agreements.
There are two basic types of separation: voluntary and involuntary. The employee generally initiates voluntary separation, while involuntary separation is at the request of the employer for reasons such as performance, conduct or attendance. Job abandonment is another form of employee separation. However, in a job abandonment situation, the employee simply stops showing up for work and does not make any contact with the employer. (For more on this topic, read “Disappearing act: Has your employee abandoned you?”)
Also known as resignation, voluntary separation is initiated when the employee notifies their employer of the intent to end employment with the practice for professional or personal reasons. It is common for an employer policy to request that employees provide a minimum of two weeks’ notice prior to the employee’s last day; however, as discussed above, at-will employment allows the employee to leave with little to no notice. It is important to understand that if an employer’s policy requires a two-week notice, and the employee gives two weeks’ notice pursuant to the employer’s policy, but then the employer asks the employee to leave before the two weeks has elapsed, the employee should be paid for the entire two weeks.
Involuntary termination of employment is an employer-initiated dismissal caused by factors that can be classified into conduct issues or broad categories of performance that can include theft, workplace violence, intoxication at the workplace when required to work, bringing firearms to work, engaging in sexual or racial harassment, excessive absenteeism, poor work quality, poor customer service and poor attitude.
Involuntary separation or termination of employment is often a difficult decision that is based on the facts and circumstances of each case. Like all business decisions, terminations must be thought through and properly planned before they are initiated.
Again, because California is an at-will employment state, the law presumes that an employer may hire or fire an employee for almost any lawful reason or no reason at all, including poor job performance. However, employers should be acutely aware that ending the employment relationship should be done after carefully considering practice policies and documents as well as state or federal laws that protect employees with disabilities.
Employers should have documentation that demonstrates legitimate business reasons for making the decision to terminate. Information such as written performance evaluations or disciplinary notices should be gathered from the employee’s personnel file. If formal documentation does not exist, it may make sense to postpone the termination decision until supporting documentation is available. Such documentation may become valuable evidence later to refute claims of wrongful termination.
The employer should consider if the employee has a legitimate excuse for their poor performance, as poor performance may be due to a disability, and whether the employee could properly perform the essential job functions with a reasonable accommodation. Employers should also consider how other employees with similar performance issues were handled and whether or not a lesser action such as a written corrective should be used in conjunction with or without a probationary period.
An employee’s objectionable and disruptive behavior may lead to involuntary separation from the practice. When the behavior is unethical or violates the code of conduct outlined in the employee handbook, the practice may initiate disciplinary actions that may eventually result in the employee’s termination. Some examples may be timecard fraud, lapse of licensure, dishonesty with patients or failure to provide appropriate patient care.
Ultimately, in all cases, the employer must comply with specific final pay and notice requirements. The following are additional tips and best practices to consider when terminating an employee:
Whatever the reason an employee leaves the practice, the separation process should be consistent and the employee should be treated with respect. When a team member leaves, it is common for the remaining staff to have questions regarding the stability of the practice and the security of their positions. To ensure a smooth transition, the practice should have a plan for handling the exiting employee’s job functions and reassuring the remaining staff of the practice’s health and stability.
Also, it is always wise to check with legal counsel before taking any action to terminate an employee to ensure all factors have been considered.
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