Advice for terminating an under-performing employee
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Advice for terminating an under-performing employee
possibly having a medical condition in Massachusett
You got it! What is an example of how they have been underperforming?
Hello, Dolan, I'm in a business of serving residential customers to humanly remove wildlife. There is a company service van, there are 2 technicians: a lead technician, and a technician. The lead technician picks up the technician and drives him back. I am having issues with the technician. Overall, the lead technician has to do much more job than it is reasonable to expect due to the technician doing less than expected. He takes frequent rests seemingly due to his health condition, today after the lead technician picked the technician from his home, all of a sudden found that he needs to go home or to hospital.
How awful! How do you feel the workload has been lately, especially with having to cover for the technician? Are there specific things that are making it harder for you to manage everything?
It is really hard to predict his performance/availability to do the job, it's always last minute, depending on his condition. Given that there are factors like weather conditions allowing to do the job within a certain time window and customer's availability. I can not put him in front of the customer due to his low energy and lack of certain basic communication skills. And of course, if we don't do the job in time, the business loses money, which puts the business at risk. It also affects our reputation.
Understood! So you're just wondering what it is you can do here, correct? Basically what landmines to avoid?
yes. any specific laws, federal and Massachusetts?
Ok! Did you need to tell me anything else? If not, I can start with answering your question.
I guess it's ok to share the nature of the possible medical condition?
Sure thing! What's the nature of the medical condition? Also, do you have at least 50 employees?
The employee's [REDACTED]. Which makes him weak, requiring frequent rest. More to that I am afraid it may create safety risks for him and others, since the job requires using ladders, going to the roof, attics, confined spaces. I currently have 3 employees, including myself
Ok! I just need a little time to draft up a high-quality answer. I'll be with you as soon as possible. It won't be terribly long.
thank you!
I'm so sorry about this situation! I want to address your situation with a detailed response, so if you have any questions, don’t hesitate to ask because this law stuff can get complicated. So there are a few things to consider: 1. The baseline common law rule in Massachusetts is that an employer may lawfully terminate a relationship with an at-will employee at any time -- for any reason, for no reason, and even for a reason that might be seen by some as unwise or unkind. (Dexter v. Dealogic, LLC, 390 F.Supp.3d 233 (D. Mass. 2019).) The law also allows an employee to terminate the employment as well. The law also allows employers to change the terms of the employment any time as well. 2. Federal law doesn't have specific rules other than you can't terminate someone specifically because they had a disability; 3. The law requires you provide reasonable accommodations to employees (if they are needed) for the employee to do their job if you have fifteen or more employees; 4. In this case, you said that this person has performance issues here. You said that this person has to do much more job than is reasonable due to the other person doing much less; 5. The employee's disability itself is not directly related to their performance and there isn't a way to accommodate their ability to do the job. So if you can't put him in front due to his low energy and communication skills, it's not illegal discrimination for you to refuse and not illegal for you to terminate.
So here is what you need to do: 1. I would prepare a letter stating the three to four basic reasons why you believe this person should be terminated; 2. You should state when their last day is as well; 3. You can also thank them for their time; 4. Make sure it is in writing; 5. Meet with this person to explain all of this. By doing this, you can make it clear this is not based on disability, but rather his performance. I have template termination letters that you can purchase as well. https://www.contractscounsel.com/t/document-form-checkout/531 Does that help clarify things? I want to make sure I didn’t leave anything out.
Thank you, Dolan, greatly appreciated! For #1 - should I prepare the letter using your template -does it have the four reasons?
Yes, I recommend a few things: 1. Prepare the letter using the template I suggested; 2. It doesn't HAVE to have the reasons, but it SHOULD. This way, if they do something crazy like file with the EEOC then you have some proof that the disability was completely IRRELEVANT to their reasons for being terminated and it will dissuade any lawyer from taking their case as well; 3. For a fee, I can review the letter you make. Normally, it's $***, but you get 10% off as a member so it should be something closer to $*** (my math isn't great). Thanks so much!
Sounds good - will prepare the draft and let you know
Would your review include adding the reasons?
So my recommendation to keep your costs down and to help make this as easy as possible is to just have you include the reasons (keep them to 1-2 sentences each) and fill out the other information like the name of the employee, the name of your business, etc.
Thank you, will do!
One more thing: it looks like you may have two threads open, so let's just keep it to this one.
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Dolan W.
You need a lawyer who's more than just knowledgeable – you need someone who's on your side. That's where I come in. I'll be there every step of the way, offering clear communication and proactive solutions. Whether you're starting a business or navigating a complex legal matter, I'll help you make informed decisions and achieve your goals. I also have drafted many templates to save you money. Just use this link - https://www.contractscounsel.com/client/lawyer-profile/3764#Templates Why Choose Me? I put you first I'm proactive I'm efficient I'm accessible