Ask The Lawyer

By Debra Roth

Handling employee removal and termination

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One of the most difficult decisions you make as a manager is to fire an employee.

First, understand that the terms “termination” and “removal” do not mean the same thing.

Removal is when an employee is separated as a result of adverse action procedures, because of problems such as poor performance, misconduct or the loss of a security clearance. Removals also extend to cases involving special circumstances, such as furlough or medical inability.

Termination is attached to decisions involving probationary or trial-period employees, temporarily appointed employees, and employees removed due to background investigation determinations of negative suitability.

Employees who are removed have appeal rights before the Merit Systems Protection Board. Employees who are terminated have limited MSPB appeal rights, but have the right to file complaints or grievances with the Equal Employment Opportunity Commission or requests for corrective action with the Office of Special Counsel.

To limit the liability of your agency: Determine an appropriate date for the separation. The employee must receive notice on or before the effective date of the action.

Pay close attention to whether the employee is entitled to advance notice. This is often the case with employees covered by collective bargaining agreements. Also, if you are separating the employee based on poor performance or misconduct, the employee is entitled to a 30-day notice under Title 5 of the U.S. Code.

Next, deliver the notice. While no law or regulation specifies the notice must be delivered in person, I strongly recommend that you schedule an in-person meeting with the employee to deliver the news. Choose a private place and, if possible, schedule the meeting for the end of the day.

Bring the following to the meeting:

* Original notice of decision — signed by you, dated, and to be sent to human resources following the meeting — and a copy for the employee.

* A copy of the employee’s grievance and appeal rights.

* A copy of an SF-8, Notice to Federal Employee About Unemployment Insurance. The Labor Department requires this form be issued to all employees separated from service.

During the meeting, communicate that the decision is final and not open for discussion, and that appeal rights are outlined in the letter. Don’t be apologetic or imply that you weren’t involved in the decision, but don’t suggest that the employee had it coming and deserves to be unemployed. Simply deliver the written notice to the employee and indicate that any questions regarding the reasons for the decision can be answered by referring to the written notice.

If an attorney or union representative has represented the employee in the separation process, those representatives should be invited to attend the final meeting.

But if the employee has not been represented, then he has no legal right for representation at the meeting. This rule of thumb extends to employees in bargaining units. Union representation if previously uninvolved in separation proceedings should not be invited to attend nor assumed to be providing representation in the matter. Nor should the union receive a copy of the decision unless specifically indicated by the employee. Including unwanted union representation in termination or removal notices is a violation of employee privacy rights.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

Comments

  1. Marquita Says:
    June 25th, 2012 at 2:44 pm

    If you don’t receive a notice and don’t sign anything from the employer and you are ask to leave what do you do?

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