In the quick-service restaurant industry, unfortunately there comes a time when the termination of an employee becomes necessary. No one likes to receive or deliver such news; however, following these four guidelines will help make a difficult process run more smoothly and place your restaurant in the best position to avoid potential legal issues.

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Communicate and Send a Clear Message  

Most all employees in the quick service industry are at-will; however, should a restaurant terminate an employee for no given reason, it can open the door to the employee believing and/or claiming that he or she was terminated for an improper or illegal purpose. 

To avoid such a scenario, restaurant management should delineate expectations for all employees, and assure all employees are trained on and receive the restaurant’s policies and procedures. When those expectations are not met or a particular policy is violated, management should immediately address the violation with the employee. Restaurant management should also outline the restaurant’s expectations of the employee, indicate where the employee failed to meet those expectations, and set a timeline for improvement. Management should meet with the employee to relay this information, and then (throughout the defined timeline for improvement), have regular meetings with the employee to monitor progress. 

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Consistently Maintain Good Records  

The quick service restaurant industry is very demanding and fast-paced, and documenting failed performance does add to the already full workload of restaurant management.  However, while it can seem like tedious work at times, it is critical that restaurant management be trained on the importance of administering verbal warnings and written write-ups immediately following the policy violation. The overall purpose is to assure a clear and consistent message to employees concurrent with their failure to perform.

In the beginning, when employees initially fail on the job, verbal warnings are sometimes most effective. However, because turnover and transfer of management can be high in the quick service restaurant industry, it can be helpful for the restaurant to maintain a record of these verbal warnings in writing.  This will allow the restaurant (and any new management) to properly track the employees’ progression, and potentially indicate, for example, when a formal written warning might be appropriate following a verbal warning on the same issue.    

Having the employee review and sign the documented write-ups is another way to assure the message is clear, as it makes it difficult for the employee to later dispute that they were given warnings related to their performance. Having disciplinary action forms approved by employment counsel is also recommended.

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Do Not Rush to Terminate

If the employee’s behavior is an obvious and extreme violation of restaurant policy and/or rises to the level of illegal behavior, the decision to terminate may need to be made very swiftly. During this time, the restaurant should promptly assure it documents the violation/behavior, makes written record of all witnesses to the conduct, considers obtaining witness statements, and contacts the authorities when appropriate. There may be times when restaurant management will need to investigate to assure it has all the facts it needs to support a termination, and in certain circumstances it may be a good idea to suspend the employee during the investigation. Should there ever be a challenge to the termination down the line, this evidence will be crucial. 

More often, the termination decision will be made based on continued failure to perform. In these situations, the decision to terminate should be well thought out and approved by the appropriate authority (i.e. management, Human Resources and the legal department). For example, in California, the employer must have the employee’s final check ready that same day. In other situations, you may want to provide the employee with a severance and release agreement (that should be drafted and/or approved by your attorneys), which can work to limit future liability for the employer.

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Hold a Final Termination Meeting

Most times, restaurant management will want to meet with the employee in person to advise them of their termination. A second witness should always be present for the meeting when this message is relayed, and the witness should be a member of Human Resources, the employee’s manager or someone else in management (i.e. operations, director, or owner). This will prevent any risk that the employee later fabricates events that occurred, or statements that were made during the meeting, in support for a later filed harassment, discrimination, retaliation or other employment lawsuit. 

The meeting should be held in a private office, or a location where there is not an audience of the employee’s peers, and it often helps to have the meeting before the employee starts his/her shift. The employee should be briefly advised of the reason(s) for the termination (failure to improve under the Performance Improvement Plan, violation of a certain restaurant policy), and reminded if the issue has previously been discussed with them. The message should be brief (10-15 minutes), direct and to the point.

In sum, assuring clear and consistent communication with employees regarding the restaurant’s expectations will greatly increase the restaurant’s chances that the employees will succeed. However, if, at the end of the day, the employee is not the right fit, these guidelines will protect the restaurant should it need to move forward with termination.     

Lindsay A. Ayers advises and defends California businesses in labor, employment, and general business matters. She is an experienced trial attorney and has represented clients in matters involving employment, unfair competition, fiduciary duty, breach of contract, negligence, unjust enrichment, securities, and fraud. She also has experience representing clients in government regulatory actions involving the EEOC, DFEH, and SEC, among others

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