Employee terminations done right reduce liability problems

by on May 22, 2009 · 0 Comment POSTED IN: HR Info Center

Document everything in employee terminations

Document employee terminations – really nothing seems harder than words on paper. Litigation defenses based on documented actions communicated to the employee are often the most persuasive evidence you have. Absence of documentation, on the other hand, can have a devastating effect on your employee terminations and lawsuits. Judges and juries expect to see written warnings and performance evaluations.

If an employer makes a call and says “Hey, we want to start employee terminations. Do we have enough evidence to do it?” The first thing others are going to want to see is that person’s history of pay raises. They’ll want to know what their performance evaluations look like, and if they have any discipline in their file. This is the documentation that judges and juries are going to want to see. And if the documentation isn’t there, or doesn’t add up with what you’re orally describing, it’s going to be a problem.

Beware of e-mail comments
So while, documentation is very important to employee terminations, you also, on the other hand, need to be wary of extraneous email comments about employees. Email is discoverable in litigation. So you don’t want to write any email messages you wouldn’t want to have read aloud in court. People often speak very freely in email; you don’t want to fall on this trap. Under no circumstances should you send an email in which you discuss another employee with instructions to “delete this immediately”. So think twice about commenting about pending discipline or employee terminations through e-mail. If you need it to talk it through with someone, it’s really better to do it orally.

Also don’t want to forget to praise and please. You want to be fair minded if they’re entitled to praise, you know, that should be documented, too. You don’t want to look completely one-sided. So keep that in mind as you go about your documenting employee terminations.

Fairness in employee terminations
Recent studies consistently rank discipline that is perceived as either unfair or inconsistent including the failure to discipline problem employees as one of the chief causes of employee dissatisfaction. In lawsuits, challenging discipline decisions can be costly, obviously. The failure to discipline problem-employees can be even more costly in the long run. In addition to damaging employee morale, employer inaction can undercut the effectiveness of your employer’s entire discipline system, especially when it deals with employee terminations.

Fairness is really number one with employee terminations. More and more courts and agencies are setting aside legal technicalities, and looking to the employer’s good faith in making discipline decisions. If the problem employee perceives a lack of fairness, the chances are increased that he or she will seek relief through a lawsuit or agency action. If other employees perceive a lack of fairness, employee morale is going to suffer. And if a judge or jury perceives a lack of fairness during the employee terminations, the employer’s probably going to face financial liability.

Due process in employee terminations
The key is to provide the employee with due process. Judges and juries really want to see due process. They want to see that the employee was aware of your expectations and was forewarned of the possible disciplinary consequences of his or her conduct. They want to know that the rule at issue is reasonably related to the orderly, efficient, and safe operations of the employer’s business. You know, that you weren’t just acting on an ad-hoc basis, that this is really necessary.

They want to see that the employer has investigated the matter fairly and objectively before administering discipline. And this includes giving the employee a chance to tell her his or her side of story. This should not be a one-sided investigation. They want to see that the employer has obtained substantial evidence of the employee’s guilt before taking action. They want to see that the employer applied its rules even-handedly and without discrimination and/or pretext

This is the edited remarks from the Rapid Learning Institute webinar “Firing Employees Without Getting Sued -What Supervisors Really Need To Know” by Laura Liss, Esq. held on October 5, 2006.

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