Inconsistent discrimination during employee terminations
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Inconsistent discrimination during employee terminations

Is the reason behind the employee termination the truth or a lie?

Inconsistent discrimination and employee termination lawsuits often focus on one question; is the employer’s reasons for its decision truth or is it a lie? Inconsistent reasons for termination help establish pretext. And it damages the credibility of key employer decision makers, which actually will be all of you. So in other words, you’re just helping the plaintiff’s case out if you’re giving inconsistent reasons for the employee termination. These reasons can appear in numerous places.

Giving a bad employee a good reference can cause problems. Suppose you go thru employee termination proceedings and fire someone and you’re feeling badly about it, so you say, “Oh, you know what, just move things over and I’m just going to give a good reference.” Well, guess what, that’s going to come back to haunt you. You just can’t do it.

Changing performance
Another example is an employee termination for poor performance even though the employee’s last performance review is positive and the employer received a merit increase. Suppose a company fires someone, and not four weeks before that, this employee had gotten an evaluation where they had met or exceeded expectations in every category. And now, they’re left to explain why they’re firing someone when just four weeks before that, they’ve given a performance review. It’s not going to be easy to explain.

Employee termination reasons differ
The employee’s direct supervisor tells the employee he or she is being terminated for reasons that are different than what the human resources either verbally informs the employee or provides in the employee termination letter or on a termination form. This is a very common occurrence. And while you may not be able to control what your HR people are doing, you can certainly be clear about your reasons for termination to (unintelligible) that’s what the HR person and make sure that’s what your documentation consistently says.

Another example is telling the employee’s co-workers a different reason for why the poorly performing employee was terminated than the actual reason. Honestly, the rule of thumb is “Don’t discuss them please.” Employee termination, – I would keep such discussion to an absolute minimum because you’re only opening yourself up to different interpretations or possible liability.

Another place for inconsistencies – are telling the Unemployment Compensation Bureau, that an employee termination due to lack of work when the real reason was that the employee was fired for misconduct. Now again, you all may not be the people that are filling out the Unemployment Compensation forms, but if you are very consistent in your reasons, HR or whoever it is that your company who filled-out that form is going to have no doubt as to the actual reason. And there’s nothing worse than saying, “Oh we fired someone for poor performance” and then you go and you look at the Unemployment Compensation contest form and you see misconduct or something completely unrelated to performance – very, very difficult to explain later.

Processing a payroll action or an exit interview form that lists an inaccurate reason for employee termination – again, you just need your documentation to be consistent.

Another play for inconsistency can be – is using – if you used a form letter for all terminations, which does not accurately reflect the real reason for discharge. And that’s not just say you have to, you know, tailor a termination letter for each of your employees. You can have a form letter but you need the real reason for the discharge to be included.

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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