April 19, 2006

Lessening Legal Landmines: A Checklist for the Termination Process

Deciding to terminate an employee from your company can sometimes be an easy decision; a decision that stirs a genuine fulfillment and evokes a notion that the world is in a better way now that the employee-from-hell is no longer on your payroll. However, the overwhelming majority of terminations are not of the “feel good” nature.

The process of termination is one with pitfalls. Adherence to some basic termination principles can mitigate against a court of law ultimately deciding if the termination is legally justified. The failure to consider the full extent of your company’s exposure in a termination context may very well end up in a “feel good” termination – but it is the employee who ends up feeling good.

Next time the decision is made to terminate an employee, run through this list and see if your bases are covered or if more thought is needed in the decision.

• Documentation, documentation, documentation! In the real estate business the equivalent is location, location, location. Before terminating anyone, make sure that the company has adequate documentation to support the decision and reason(s) for termination. In other words, the proffered reason for termination should be substantiated. For example, there should be some paper history of warnings, write-ups, and the like. Additionally, timeliness of disciplinary documentation is essential. Firing someone a year after an incident lends support to an employee’s potential claim that the real reason for termination is unlawful.

• Have the company’s policies and procedures been followed? Assure that your company’s investigatory, progressive discipline, and termination policies and procedures have been (or are being) strictly followed. If the offense is governed by a policy that first calls for counseling or some kind of suspension, then that should be done. Otherwise, as the company representative, you may very well be chosen (by popular vote of your colleagues) to explain to a government agent why the company did not follow its own policies and procedures in terminating the employee.

• Is the treatment of this employee consistent under the company’s policies? Have similarly situated employees been treated the same way? In this regard, having well-trained managerial staff is vital in making sure that there is a strong knowledge of the company’s policies and procedures along with consistent application. Explaining to an EEOC investigator why women or African-Americans are treated differently than other employees under your company’s policies is not a position to relish.

• Is the termination meeting “scripted?” I recently participated in a termination meeting in which the company thought that violence might be a possibility (management knew the employee carried a gun in his glove box). Prior to the termination meeting, the company president and I scripted out what management members were to be present (and what lucky company representative would get to sit closest to the exit door), what was to be said by the terminating manager, what company items were to be requested from the departing employee (from which we created a checklist), and what procedure would be instituted for removing the employee from the premises. Writing a script helps minimize stray and potentially damaging comments from company personnel during the termination process and forces this already painful task to be a quick one. That said, you will not account for all possible things that can occur but chances are you will have most situations covered. If there is a potential for violence, consider requiring a company security personnel to be present for the termination (or hiring an off-duty police officer) and searching the employee before the termination meeting.

• Is a severance agreement something that should be considered? Evaluate the timing of the termination and the overall situation (the race, sex, age, national origin, etc. of the employee) to determine if a severance should be offered. For example, did the employee recently complain of sexual harassment, raise a safety concern, or tell management of a disability s/he suffers from. While the decision to terminate may have nothing to do with any of these things, it is readily apparent how the timing immediately looks suspect. With a wall-to-wall severance agreement, the company can perhaps pay a nominal amount of money and get the employee to waive his/her right to institute litigation against the company stemming from the employment and/or the termination. A federal magistrate judge informed me that in the Southern District of Indiana, excluding criminal cases, nearly 70% of the remaining cases involve employment-related litigation. So, employees are very familiar with the route to the courthouse and the litigation pilgrimage.

• Avoid the “Roberta Flack approach” to termination. The termination process is a painful one - - someone is losing his/her job. Words of comfort by management will in all likelihood fall on deaf ears and therefore the “Killing Me Softly” [1973] strategy is not recommended. All too often, this soft approach leads to someone in management starting sentences, ill-advisedly, with clauses such as: “If we have an opening somewhere else in the department . . .” or “If you can get things straightened out in your life . . .” or “I just don’t think this particular job was a good fit for you . . .” This language gives the employee the absolute wrong sense of the situation and leaves the impression that a return to the company is possible. Also, a unique approach to termination that I have seen is to not actually fire the employee at all but just lay off the employee. This approach, it is thought, will make the employee feel better. Recognize that under this scenario the employer has no expectation of recalling the employee from “lay off” but the employee is thinking just the opposite. If your intention is to fire the employee, then do it.

Seriously considering the items on this checklist before the termination process is set in motion can put your company in a better position to anticipate the multitude of circumstances than can take place afterwards.


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