A decision to separate an employee can raise legal issues if not done properly. However, your practice can take steps to greatly reduce risk and ensure a smooth termination process. Before terminating an employee, follow this checklist of best practices with the required documents to ensure compliance with California law.

Best Practices for how to prepare for employment separation
Any employee separation should be done in a structured and professional manner with minimum disruption to the patients, staff and practice. Depending on what triggers an employee’s departure, separation can be an awkward situation for employers to navigate. Employers are encouraged to review this checklist to reduce risk and ensure a smooth process.

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, (including the Employee Handbook, if there is one) practices and any other implied or actual agreements.

Identify, and document the legitimate, nondiscriminatory reason for the termination:

• Evaluate performance review(s) and highlight language supporting termination.
• Investigate and Review whether other documentation exists.
• Ensure that the employee is not being treated differently from similarly-situated employees.
• Evaluate if reasonable alternatives to termination exist (e.g. performance improvement plan, final warning, suspension) before proceeding.
• Evaluate that the practice is following written policies for discipline and termination.

Considering terminating an employee who has not shown up for work or communicated with you. Please read Disappearing act: Has your employee abandoned you?

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:

1. Complete a termination checklist in advance. A checklist will provide information on legal requirements, and paperwork to have ready.
2. Whenever possible, schedule a termination meeting for the beginning of the employee’s shift. Allowing an employee to continue to work once it is determined that they have significant performance failings sends a mixed message about the need to terminate. If the beginning of the shift is not feasible, the beginning of the lunch break is the next best choice.
3. Treat the employee with respect. Briefly explain the termination decision. Be clear and explain the policy violation(s) or performance issues and the basis for the decision.
4. Speak honestly about the reason for termination. Avoid using subjective words like incompetent, slow or rude. Focus instead on the performance expectations, standards of conduct and policies and the employee’s inability to meet them.
5. Allow the employee to respond verbally, or in writing.  Acknowledge any valid points but avoid engaging in a debate.
6. Provide a completed Change in Relationship Notice or separation letter. There is no specific form for the required notice. You can create your own form. Although not required by law, request the employee’s signature acknowledging that he/she received the termination notice. 
7. Ensure the return of any property of the employer and tactfully arrange for the employee to remove personal effects in private. If possible, you may gather the employee’s personal items in advance.  Note: Final pay should not be held if the employee is unable to return or refuses to return office property.
8. End on a positive note. Walk the employee to the door, thank them for their contributions and extend best wishes for their future.
9. Schedule a short meeting with your staff promptly after the termination has concluded. Do not give details regarding the separation; rather, speak to the need for their continued support and collaboration. Avoid using the word termination when speaking to your team or any person not authorized to know the details of the situation as it could be considered sharing confidential information.
10. Finalize your notes on the termination meeting. Notes taken during a termination meeting or documentation related to the meeting would include any statements the employee made or displays of emotion. If the employee says nothing and does nothing, this too should be noted. Place all of the associated documentation in the employee’s personnel file. Should the employee apply for unemployment insurance, all of which could be pertinent information to send when responding to the claim?
11. Collect office keys and any additional office equipment in the employee’s possession.
12. Change alarm code and locks to the office/building if necessary.
13. Remove access to a computer. Change password-protected areas and email access.
14. Remove website privileges to supply vendors or any business accounts utilized by the practice.
15. Cancel memberships to health clubs, Costco/Sam’s Club or other retail memberships or benefits provided.
16. Remove check-writing authorization from appropriate institutions if applicable.