I have represented employers in wrongful termination lawsuits for sixteen years and am frequently asked—typically while sitting in a mediator’s office—“How can I avoid this in the future?” While each situation is unique, companies that avoid lawsuits generally share a common trait: they have a detailed HR plan backed up by good supervisor training. The mistakes listed below can be avoided with a small investment into your company’s human resource practices and consultation with a qualified professional.
- Lack Of Honesty During The Termination
Terminating an employee is understandably difficult for all involved. Unfortunately, supervisors try to avoid controversy by providing vague, partially true or even false reasons for the termination when an honest and direct explanation is the best course. For example, when an employee is not performing to company standards or has a long history of being a “morale killer,” rather than just being honest that “your behavior / performance has a negative impact on our company and can no longer be tolerated,” the manager says “look, everybody here really likes you [when they don’t] and you do a great job [when he doesn’t]….and I would keep you if I could [no you wouldn’t], it’s just we have to make some budget cuts and need to let you go [not true, you are hiring someone for the same position next week].”
The supervisor in this instance was only trying to be nice, but this approach can backfire because being dishonest (even for good faith reasons) only generates suspicion regarding the “real reason” for the termination. Even worse, it allows your former employee’s new lawyer to claim the termination was based upon an illegal reason, such as gender, race, religion, etc. The best practice is to train supervisors to be honest, direct and to the point when terminating an employee, keeping in mind the vast majority of employees are at-will and can be laid off for any reason, even an arbitrary reason—just not an illegal reason. Simply because a former employee doesn’t agree with your decision, or the reasons surrounding it, doesn’t mean you have violated the law.
- Misuse Of The Employee Review
Typically, supervisors dislike the employee review process because it puts them in the difficult situation of criticizing people they see every day. As a result, they tend not to document the negative or they may even give artificially positive remarks for those employees not performing to company standards. This “ignore the negative / focus on the positive” approach may save hurt feelings in the short term, but can have harmful effects when a problem employee is ultimately terminated because the termination contradicts the “positive” reviews sitting in the personnel file. The best practice is to train your supervisors to document the positives and the negatives of employee performance—if an employee is not performing to standards, document the issue so that a potential future termination is understood in its full context.
- Quick Terminations
Before firing anyone it is critical for employers to conduct a thorough review of the employee’s personnel file and, at a minimum, understand the employee’s recent work history, including relationships with co-employees. Has the employee recently complained to anyone about alleged safety violations or wage practices? Has he recently come back from a protected leave of absence? This is critical information employers must consider before termination because these are the foundations of wrongful termination or retaliation lawsuits. Knowing this information up front will allow you to better manage a complex termination before mistakes are made. Doing the work upfront can save significant time and money later on.