Terminating At-Will Employees

In Texas, at-will employees can be terminated at any time for any reason, as long as it’s not an illegal reason, if it is in the best interest of the employer.   

To preserve the employer’s ability to terminate employees, any written documents (e.g., policies, employee handbooks, and memos) and any verbal statements made to at-will employees should be carefully constructed as to not create the expectation that specific procedures must be followed prior to termination.

In a school district, at-will employees include bus drivers, custodians, maintenance workers, grounds keepers, child nutrition workers, clerical staff, instructional aides, substitutes, and any other staff not employed under a contract.

Even though entities have sole discretion in dismissing at-will employees, there are some best practices to consider implementing.

Carefully Hire

Principals, supervisors, and other hiring managers should implement sound hiring practices that include:

• Carefully screening and selecting applicants
• Thoroughly interviewing applicants using interview questions relevant to the job
• Checking references
• Completing background checks
• Providing thorough orientation and onboarding processes

Effectively Manage Employee Performance

Supervisors should effectively manage employee performance and provide support and guidance to help employees be successful on the job and reduce the number of terminations. It also ensures employees are treated fairly and documentation exists to support employment decisions based on job performance.

Effective management includes:

• Communicating job tasks and expectations
• Continually monitoring job performance
• Providing ongoing feedback
• Coaching by suggesting ways to improve
• Diagnosing problems
• Correcting poor performance
• Providing training
• Implementing an improvement plan if needed
• Using a consistent evaluation system
• Building positive relationship with employees
• Rewarding good performance

Apply Constructive Discipline

When job performance issues occur, supervisors should apply a constructive discipline model which gives an employee the opportunity and resources to correct a problem and reinforces the job expectations and standards of conduct before an employment decision is made. This model provides increasingly more severe penalties as the seriousness of the offense increases or as repeated offenses occur including:

• Counseling
• Verbal warning(s)
• Written warning(s) 
• Suspension
• Reassignment
• Demotion
• Termination

Although each employee’s job performance issue is different and should be handled individually, a progressive employee discipline process should be followed. Note, not all employee behaviors are remedial—some justify immediate termination.

Document

Documenting efforts to improve employee performance can be extremely valuable in responding to complaints, discrimination charges, unfair practices, and unemployment and worker’s compensation retaliation claims. Documentation should include a clear description of the job performance issues, disciplinary measures provided, and employee responses.

Supervisors should share documentation with the employee throughout the process. An employee who disagrees with the findings or corrective action taken may write a rebuttal and have it attached to the documentation. Documentation should be kept in the employee’s personnel file.

Remember, if a non-certified employee resigns or is terminated and there is evidence the employee abused or otherwise committed an unlawful act with a student or minor, was involved in a romantic relationship with a student or minor, or solicited or engaged in sexual conduct with a student or minor, the superintendent must file a report to Texas Education Agency (TEA) within seven business days (Texas Education Code (TEC) §22.093).

Follow Termination Procedures

Human resources directors and supervisors typically collaborate when notifying an employee of a termination decision. HR’s presence at the termination conference can help keep the meeting professional as well as provide the employee with information on the exit process (e.g., returning uniforms, submitting badge and keys, continuation of health insurance information, and last paycheck). A sample Employee Separation Checklist to help manage the process is available in the HR Library (member login required).

Providing the employee with a written termination letter is recommended, as well as placing a copy of the letter in the employee’s personnel file. Since each situation is unique, a sample letter is not included in the HR Library. Questions about the content of the letter should be directed to local counsel.

Use Available Resources

A multitude of resources are available to assist with managing employee performance and terminations including the newly released Administrator’s Guide to Managing Employee Performance and resources in the HR Library under Employee Performance.

Closing

Although at-will employees have no legal right to due process before termination, employers should work to correct job related deficiencies and retain employees, particularly during this difficult hiring period.

Consistently following these best practices ensures employees are treated fairly, appropriate steps are implemented to correct job performance issues, and employment decisions are based on the employee’s job performance and responses to corrective measures.