HR Solutions

SHRM's knowledge advisors answer common HR questions.

By Liz Petersen, SHRM-SCP & Karen Burke, SHRM-CP Jun 1, 2015

HR Magazine June 2015 Should a company tell employees why they were terminated?

Some states, including California, require employers to give workers a written explanation for why they are being terminated at the time the termination occurs, while others mandate that a termination letter be sent only if the employee requests one. (The Society for Human Resource Management’s website has a state law chart on service letters that can help you determine which state laws are applicable.)

However, even when not required by law, employers should consider providing a reason for termination to substantiate the decision in the event that a legal claim is made against the company. Doing so can serve as documentation of the decision for unemployment claim appeals as well.

Here are some tips for getting a reason for termination to hold up in court:

Make sure the documentation is reviewed by someone besides the direct supervisor. A supervisor’s recommendation to terminate may raise a red flag if the employee has an established record of satisfactory performance. Questions may also crop up when the supervisor’s recommendation is based on subjective criteria that aren’t substantiated by written documentation or when the reason is based solely on “he said, she said” evidence.

Ensure that termination decisions are fair and consistent with company policies and past practices. If they aren’t, you may want to reconsider whether termination is the appropriate course of action.

Draft a clear statement of the grounds for termination to eliminate any debate over whether this is a sound business decision. This could assuage any complaint from the employee that he or she was treated unfairly. Include facts leading up to the termination decision, and reference any specific policy statements violated.

Don’t try to cover up the true reason for termination by providing irrelevant facts or explanations. When the reason for termination is not clearly identified, managers might make vague or inconsistent statements that can weaken an employer’s defense.

Even when termination “at-will” is legal, an employee who believes he or she was discriminated or retaliated against can file a claim with the U.S. Equal Employment Opportunity Commission or in court. In short, to discourage potential discrimination claims or lawsuits, ensure that each termination has a fair, legal and sound business reason behind it.

—Liz Petersen, SHRM-SCP

Can H-1B workers take paid and unpaid leave?

Yes, under certain conditions. The federal H-1B program, which allows employers to hire highly skilled foreign workers for certain specialized jobs, requires you to pay those workers the required wage rate for all nonproductive time caused by conditions related to employment, such as a lack of assigned work, the absence of a work permit or the need for the worker to study for a licensing exam. You must also pay them when there is no work because of holidays or weather-related closings. Federal law prohibits “benching” H-1B workers, or laying them off without pay.

However, when the time off is requested by the H-1B worker, you can allow him or her to take time off that is paid or unpaid. Worker-initiated leave, such as vacation, sick leave, maternity leave or any other voluntary absences from work are not required to be paid, according to U.S. Department of Labor regulations. But you are obligated to pay H-1B workers if the leave is covered under your company’s benefits plan or is mandated by any other federal or state statutes. You are required to provide H-1B workers who are in the U.S. for more than 90 days with the same benefits you offer your U.S.-based employees. You aren’t allowed to subject H-1B workers to stricter health care insurance eligibility requirements, for example, or to exclude them from eligibility for benefits.

Additionally, H-1B workers are generally entitled to state and federally mandated unpaid leaves of absence, including leave under the federal Family and Medical Leave Act, as long as they satisfy the eligibility requirements. They can take unpaid leave without the leave resulting in the termination of the employment relationship with their employer.

U.S. Citizenship and Immigration Services and the U.S. Department of Homeland Security don’t limit the duration of an H-1B worker’s leave as long as that person is expected to continue employment.

However, be aware that time spent on leave counts toward the six-year limit a worker can be in the U.S. with an H-1B visa. The only exception is if the worker’s immigration status changes while he or she is on leave and reverts back to H-1B status at the conclusion of the leave.

—Karen Burke, SHRM-CP


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