The dirty dozen: 12 mistakes to avoid when terminating employees
Thursday, September 03, 2015
The majority of employment-related lawsuits against employers arise after the employment relationship ends. This article outlines some common mistakes that employers make in terminating employees in hopes that employers can improve the way they terminate employees and avoid the expense and interruption of litigation.
1. Making an emotional or impulsive decision
Employers are expected to be objective, level-headed and rational in making employment decisions. One of the worst things an employer can do is to make a quick, emotional decision to end an employee's employment.
Suspending an employee pending termination is often an effective way to take the emotion out of a situation and give the appearance of due process. It allows the employer to reflect on the circumstances and make a better, more defensible decision.
2. Not following procedures in handbooks or contracts
Employers have employee handbooks so employees know the terms and conditions of their employment and what they can expect from the employer. Handbooks help to systematize and communicate work rules and disciplinary procedures. Union contracts or employment contracts may also contain agreed-upon procedures or requirements for terminating an employee's employment.
By not following these procedures, employers not only open themselves up to claims for breach of contract, but they also increase an employee's emotional reaction to the termination. When employees see that a written procedure was not followed, they assume they were treated unfairly or for some ulterior motive, such as their race, religion, age, sex or other protected category or action. Not following an express procedure can also be evidence of pretext in subsequent litigation.
3. Not following progressive discipline
Even where there is not an express procedure that maps out how and for what reasons an employee may be terminated, employees expect they will get some sort of advance notice and time to cure poor performance or misconduct before being terminated. Plus, while it may not be a legal requirement, the longer an employee has been employed with the employer, the more time or notice the employee expects before being walked out the door.
When employees feel they are denied this notice or progressive discipline, they are more likely to file claims against their employer. Failure to follow progressive discipline, whether expressly promised or expected, makes employees suspicious of the employer's motives for the decision and they go running to a lawyer or their union for protection — or revenge against their former employer.
4. Not conducting an investigation
Part of making a termination decision reasonable and legally defensible is conducting a thorough investigation. The employer must interview witnesses, gather relevant evidence and document the investigation as appropriate for the circumstances. It is particularly important to get the employee's side of the story before making a final decision to terminate the employment relationship.
5. Not checking how others were treated for the same offense
To make sure there is no appearance of unlawful treatment based on a protected status or action, an employer must review how it has treated other employees whom it may have terminated or disciplined in the past for the same or similar behavior and treat employees the same. Employers at least need a legitimate explanation, along with documentation, for why a particular employee may have been treated differently.
6. Not reviewing or having documentation
As part of the investigative process, employers must review the documentation that exists in the personnel file of an employee who is about to be terminated. If there is no written documentation in the employee's file, it may be wise for the employer to not terminate and instead consider issuing a final written warning, performance improvement plan (PIP) or a last-chance agreement with the employee in lieu of termination at that time.
Similarly, it is beneficial for the employer to review other documents such as existing written policies, memos, acknowledgements of training, or disciplinary warnings issued to other employees. Any of these documents, or the lack thereof, could be critical in any subsequent litigation.
After all, such documentation will be requested and examined in the discovery process, so it is better to look at it before making a decision rather than in the course of litigation.
7. Timing the decision in proximity to protected conduct
Many claims involving harassment, discrimination or retaliation do not have direct evidence of wrongdoing by the employer. As a result, plaintiffs need to rely on indirect or circumstantial evidence to prove their case.
One of the most frequent types of indirect evidence is the timing of an adverse employment action with respect to some protected activity, such as claiming harassment, announcing a pregnancy, requesting a leave or an accommodation, posting something critical of the employer on social media, being a witness in another employee's claim or filing a workers' compensation claim.
The closeness in time of the protected activity and the adverse employment action can give rise to a suspicion that the employment action was because of the protected action. Thus, employers should try to separate the protected activity from the adverse employment action or at least document the employment action was not because of or related to the protected activity.
8. Not having a witness in the termination interview
Without a witness in the termination interview, employers open themselves up to claims that something unlawful or inappropriate was said by the employer's representative in the meeting. Although there may still be a "he said, she said" dispute, the presence of two employer representatives reduces the chance of facts being fabricated by the employee and allows the employer another person to testify about what happened in the termination meeting.
Of course, having a second person in the meeting helps keep the agenda for the meeting on track. The presence of a witness may also reduce the likelihood that the employee who is being terminated will act out or become violent.
9. Not giving a truthful reason for the decision
Some employers try to sugarcoat communication of the termination decision and avoid the confrontation that may be required of accusing someone of theft, violence or some other form of gross misconduct. But by not telling the truth, an employer puts its entire credibility at risk in any future litigation.
It is simply best to tell the truth and to preserve your credibility. The truth should be kept brief, and it is not necessary to go into great detail about the reason(s) for the termination. Nothing requires the employer to present its entire case for termination in the termination meeting, and it is more compassionate to spare the employee the indignity of unnecessary details.
10. Giving inconsistent reasons for the decision
When employers give multiple reasons for a termination, it raises doubt as to the "real" reason for the termination. This doubt not only diminishes the employer's credibility, but it can also make it difficult for the employer to get any subsequent litigation dismissed on a motion for summary judgment.
The legal theory here is that, by giving multiple reasons for the termination, the employer has created a material dispute of fact that can only be resolved by a jury.
11. Not anticipating the employee's reaction or questions
Before going into any meeting where an employee is about to be terminated, the person communicating the decision must carefully plan what will be said and in what sequence, how the meeting will be concluded and what next steps need to be taken. In addition to planning these actions, the employer must anticipate what questions or objections the employee may raise during the meeting and plan its brief response to such questions or objections.
12. Mishandling logistics of the termination
Mistakes with the logistics phase of the termination may come back to haunt an employer. The termination interview should be conducted in a place and at a time to give the terminated employee as much dignity as possible without compromising security. If the employee is expected to act out when informed of the decision, the employer should take appropriate security precautions.
Once the termination decision has been communicated, the employer should make arrangements for the employee to retrieve any personal belongings in the workplace. When in doubt, the employer should advise the employee that it will make arrangements to send the property to the employee.
As soon as possible, the employee's access — including remote access — to Internet, email and electronic systems should be terminated. Employer property must be retrieved, and any automatic payroll payments or benefits should be terminated as well.
COBRA notices, life insurance continuation rights and information regarding retirement plans should be sent in a timely manner. Garnishments, child support payments, tax levies and unemployment paperwork should be completed, if applicable, to avoid post-termination issues for the employer.
Hopefully, by listing some of the common mistakes employers make in terminating employees, this article will help employers minimize or avoid liability and expense that may be caused by not following the "best practices" for proper termination procedures.
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