|
|
|
||
|
|||
No matter how indolent, inefficient or inept an employee may be, the decision to terminate the employee poses the greatest challenge a manager faces. In addition, lawsuits and other claims, such as EEOC charges, far exceed all of the other types of claims combined. As a result, it behooves every manager to proceed with caution in both making termination decisions and in communicating the decision to the employee. This article highlights those steps a manager should take before discharging an employee.
Documentation
An employer’s records can be vital evidence in the defense of a termination. An employer should be able to produce documents that support its version of the events. Therefore, it is important that great care is taken in the development of this “paper trail.” There is no such thing as “over documentation” in the employment arena and employers should maintain appropriate records on all aspects of employees’ performance, conduct, attitude, and demeanor.
Accurate records of performance and discipline can be important defenses to an employment discrimination suit or other claims of wrongful discharge. For this reason, performance evaluations should be conducted accurately and should reflect the strengths and weaknesses of the employee. “Sugar-coated” evaluations could backfire when an incompetent employee is terminated and later sues because he received satisfactory evaluations.
The following practices can go a long way towards ensuring that an employer has the documentation necessary to defend itself against an employment discrimination suit:
1) Make certain that personnel documents will not be in advertently destroyed and that legally mandated docu- ments will be retained for the required period.
2) Provide careful, accurate and complete documenta- tion that is objective and reflects legitimate business considerations. Nothing should suggest a prejudice or bias against an employee. For example, a perfor- mance review stressing that an older worker “lacks en- ergy” could suggest age discrimination.
3) Maintain documents essential to deciding and imple menting a termination action, including:
• Disciplinary policies, performance standards, and company rules;
• Evidence that employee had knowledge of the above (i.e., signed acknowledgement);
• Eyewitness accounts of employee misconduct;
• Supervisory memos of misconduct, performance
problems, etc.;
• Actual warnings to employee and evidence of
counseling efforts;
• Annual performance evaluations; and
• Evidence that the same standard or policy was applied
consistently to all employees.
A key defense to any employment discrimination suit is evidence that all similarly situated employees were treated in a like manner for purposes of discipline and discharge.
Review Company Policies and Current Employment Laws
When confronted with a potential termination, the first thing an employer should do is to carefully review all policies and procedures, written and oral. Employee handbooks or other personnel policies may require certain procedures regarding discipline and discharge, and failure to follow these procedures could provide an employee with the basis for a claim. In addition to company policies and procedures, Federal and state laws such as those prohibiting employment discrimination, may limit an employer’s ability to terminate employees. Before making a termination decision, an employer should consider Federal (e.g., Title VII of the Civil Rights Act), and state statutes and local ordinances.
Making the Termination Decision
Next, an employer should review the events preceding the termination decision:
1) Determine whether the incident prompting the termi- nation has been thoroughly and properly investigated and documented in writing.
2) Determine whether there is a valid, job-related reason for terminating the employee, such as a violation of
company policy or poor job performance.
3) If the employee has similar problems in the past, make certain he or she was made aware that the behavior or job performance was unacceptable.
4) Make certain the employee has received all rights
conferred by company policy (i.e., progressive discipline or grievance policies in a handbook).
5) Review the employee’s overall work record.
6) Determine whether extenuating circumstances (such
as abusive or unfair treatment by a supervisor) may
have contributed to the employee’s unsatisfactory
performance.
7) Look for any evidence of harassment, or illegal
retaliation for an employee’s exercise of legal rights, such as reporting wrongdoing or health or safety
violations.
8) Be sure that the termination is not merely the result of a personality conflict with the supervisor.
9) Determine whether the termination is consistent with prior actions where the factual circumstances are similar.
10) Have the termination decision reviewed by an individual familiar with employment discrimination laws and unjust dismissal theories (such as trained human resource professionals, in-house counsel, or outside employment counsel) to ensure that there is no legal problem.
11) Explore alternatives to termination such as transfer, coun- seling, or demotion before making the final decision.
COMMUNICATING THE TERMINATION DECISION
Once the employer has reviewed the termination issues and made the final termination decision, it must communicate the decision to the employee. The manager should fully explain the termination decision and inform the employee of any post–termination “benefits” or procedures. However, it is extremely important to plan for and execute the exit interview in a proper manner because employees may use statements made in an exit interview to support their claims in litigation. Ground rules for communicating the termination decision include:
• Keep the meeting as short as possible, preferably no more than 10 or 15 minutes.
• Have a witness present and make a written record of all discussions during the termination interview.
• Demonstrate that the termination was based on a careful review of all the facts and represents the consensus
of management.
• Tell the employee plainly and clearly the reason why he/ she is being fired. For example if poor performance is
the reason, provide the basic facts about the performance problems.
• Be candid about the reason for termination, but avoid being overly specific or detailed.
• Be prepared to answer all questions asked by the employee.
• Do not engage in any argument concerning the company’s grounds for termination or the employee’s short comings.
• Acknowledge the individual’s feelings, but do not prolong the meeting by probing for other reactions. The best response to an angry employee is to acknowledge the feelings and to help the individual stick to the facts at hand.
• Do not try to be overly friendly or blame others in the company for the decision.
• Do not make any admissions of possible company wrongdoing.
• Stress that the decision is final and never “second guess” the decision during the exit interview.
• Explain final wage payments, accrued vacation pay, COBRA rights, etc. or present a separation letter with all pertinent information.
• Review and explain any employment or termination agreements.
• Explain the company’s post-employment references policy.
• Obtain the return of company property and advise the employee of procedures for retrieving his/her personal belongings.
The goal of any termination is to allow the employer and the employee to part as amicably as possible under the circumstances. Unfortunately, that is not always the case, and termination can result in litigation. By following some of the practices highlighted here, however, an employer may lessen its exposure to employment discrimination and wrongful termination lawsuits.