6 Terminations That Can Land You in Court and How to Avoid Them
Terminations are frequently the catalyst that drives employee lawsuits and labor board claims. There are simple steps every employer must take to defend themselves whenever terminating an employee. Whether or not you think you have a good reason to terminate an employee, you must cover your assets and strategically implement the best course of action Treading the termination zone is a tricky process that can either end up with a positive outcome or drain your time, energy and cash as you attempt to defend your actions. Below are 6 examples of typical termination situations that can end up with a nasty outcome followed by simple solutions to protect yourself.
Recently Hired Employees
Typically, new employees that are terminated are done so for performance reasons. Without diligent training and orientation,employees can claim that they did not know what the performance expectations were or that they were untrained. It is also possible for them to file claims or lawsuits related to similar performance discrepancies in other employees.
The Fix: Orient new employees to your business, your company policies and their positions and responsibilities. Document all training and orientation efforts and do so consistently for all new employees, regardless of position.
Absenteeism and Tardiness
It is important to document carefully, every instance of missed days and tardiness as soon as it occurs and have the employee sign the documentation. You should carefully communicate the importance of on-time and consistent attendance and the consequences of continued shortcomings. Occasional incidents may be normal but as soon as a pattern develops, (2-3 occurrences in a short period of time), it is time to give the employee a final warning and then terminate decisively if the fail to perform.
The Fix: Clearly communicate company policy in your handbook and orient the new employee on the first day as to what your expectations are. Utilize consistent and accurate timekeeping methods that are easy to track and review.
Misconduct
There are numerous behavioral problems that employees can fall into and not all of them can be witnessed or monitored very easily due to offsite locations, unreliable witnesses and lack of evidence. For situations that have been witnessed by management or fellow employees, it is important to interview all parties and allow the employee to provide his/her side of the story before making any final judgments. For problems that occur without reliable evidence or witness testimony, it is even more critical to investigate the situation thoroughly.
The Fix: When assigning employees to shifts or locations where they may not have adequate supervision, be sure there is always someone in close proximity that is trusted and reliable. Train your managers and supervisors in the art of performance management so they can differentiate between misconduct and proper behavior on the job.
Abrupt Decline in Performance or Quality
In this difficult economy, employees are under pressure from home life difficulties and financial woes. It is important to counsel the employee and determine what may be affecting them before taking action. Employees that are terminated for declining work performance can make claims of discrimination or wrongful termination if there is no standard that employees must meet or if they were not provided the opportunity to correct the problem.
If no reasonable improvement even with accommodation can be demonstrated by the employee, terminate only if documentation has been carefully compiled and all avenues have been pursued.
The Fix: Ensure you have consistent and objective performance evaluation standards and follow a regular schedule of evaluating performance.
Voluntary Resignations
Terminated employees can often claim that they were working in a hostile work environment, were the victim of harassment or that they were forced out by unreasonable work conditions. These claims are not always easy to defend depending on supervisor behavior and actual work conditions. Claims of sexual harassment can occur for even the most innocent of behaviors by a supervisor. Defending these types of claims will take time and money and may end up in a settlement if you find there is a lack of evidence to disprove the employee’s claim.
The Fix: Do not allow employees to resign quickly if at all possible. Inquire as to why they are leaving and if it is appropriate, ask them to reconsider. If this fails and they decide to leave, provide them with an “Exit Interview” form they can fill out along with their final paperwork.
“At-Will” Termination
Another term for this might be a “no reason” termination which many employer’s use when the situation is too difficult to deal with or if documenting the performance may cause more trouble than its worth. Even though the “at-will” statute in California is in place, it is wise for employers not to fully rely on this to protect them. Most employees will want a reasonable explanation as to why they are being terminated and it is important provide one, especially if the employee is in a protected class (e.g., gender, race, religion, disability).
The Fix: Always be ready to communicate the reason behind a termination to the employee and document carefully the facts behind the termination. Document the termination and have witnesses present as to avoid the “he-said/she-said” problem.
In general, it is critical, even for small employers, to manage their employees performance carefully, consistently and document everything action. Proactive performance management will not only improve productivity, morale and work quality, it will protect you against unwarranted claims and lawsuits.
