Category: Retention articles

These days, it’s a lot harder to get rid of a problem employee. Workers are more aware of their rights under the law—and they’re more likely to seek the advice of an attorney if they think they’ve been wronged by their employer. The result: A lot of workers are getting even by claiming they were wrongfully discharged or discriminated against. The lesson from all this: Fire away, but do it the right way.

At-will limitations

Traditionally, people hired for an indefinite period were considered at-will employees. Unless they held an employment contract specifically stating otherwise, you could fire them for a good reason, a bad reason or no reason at all. Over the years, though, courts have recognized exceptions to the at-will doctrine. Here are three big ones:

Exception 1: Discrimination. Under federal law it is illegal to terminate workers because of their age, race, religion, sex, national origin or a disability that does not influence their job performance. Some states add other limitations. Example: In Michigan you can’t fire over marital status. In New York you can’t fire over sexual preference.

Exception 2: Public policy. You cannot legally terminate an employee for reasons that violate public policy. That means you can’t fire one of your engineers for informing the EPA that your company has been dumping toxic waste in the river. By the same token, if a court orders you to garnish the wages of a worker who’s behind on child support, you can’t fire him merely to save yourself the hassle of additional paperwork.

Exception 3: ‘Just cause’ promise. If you tell your workers that they will be fired for cause only—or otherwise establish guidelines that spell out how and when terminations will be handled—you may be creating an implied employment contract.

The problem: If you don’t follow your disciplinary rules to the letter, you could find yourself on the losing end of a lawsuit. In short, employment at-will still exists, but it has been so deeply eroded with exceptions that you’d be wise to follow a simple rule: Don’t fire a worker without a good reason that you can articulate clearly and document convincingly.

Laying the Groundwork

It’s a lot easier to discipline a worker if you’ve made your expectations clear from the beginning. Each employee should have a job description that lists the tasks you expect accomplished daily or weekly. Make it clear, however, that these tasks are subject to change depending on the organization’s needs.

If you have rules specifying how certain tasks are to be performed, post them in the work area. That helps workers do their jobs correctly and helps you point out when a rule is broken.

Some employers state clearly in their handbooks that employees are subject to firing without cause. Some companies ask employees to acknowledge this by signing a form. There’s a trade-off here: Signing such a statement won’t endear your workers to you and the company. A policy of firing only for just cause is more likely to build loyalty, but it might subject you to judicial review.

When you’re unhappy with a worker’s performance, the first step is to point out the problem and suggest ways to correct it. Be objective, direct and specific. Ideally, the employee will acknowledge the problem and do what it takes to straighten up.

If that doesn’t work, write a few notes about what the employee is doing wrong or failing to do right, and reference the standards you’ve communicated. Include the date of specific failings. Document every warning.

Keep enough of a record that you can remember what happened, but not so much that it looks like a setup.

The firing line

If you’ve been careful to set standards, discuss shortcomings and suggest improvements, you may see enough progress that you don’t have to terminate the worker. If nothing else, giving constant feedback should make the firing process easier because the worker will see it coming.

That doesn’t mean, of course, that the process will be easy. Some workers will get teary, others might get violent and all might try to distort the events of the actual firing. To protect yourself, try the following:

• Have someone else with you when you talk to the employee so there’s no question of what was said.
• Write a memo afterward about the meeting and have the witness sign it.
• Conduct an exit interview to give employees a chance to let off steam or express their concerns.

Classic firing mistakes to avoid

How can you avoid the tension and anger in fired employees that might later manifest itself as a lawsuit? Try to stick to the following guidelines:

• Keep your cool. Avoid heightening an already emotional situation. Don’t spring the news suddenly, shout names or berate the worker in front of other employees.
• Avoid surprises. Workers should never be completely surprised by a termination. Give your employees regular feedback on their performance, and suggest methods for improvement. At the very least, progressive discipline proves to a court that you had valid reasons for terminating a worker.
• Play by the rules. Follow your established discipline policy. If your handbook says you’ll provide a verbal warning, a written warning and a probationary period, then do each. Of course, your handbook also should give you the right to terminate workers immediately who engage in serious misconduct. But before skipping progressive discipline, be sure of your facts. It’s not enough to hear rumors of wrongdoing from others. Conduct a thorough investigation, then ask the employee for his side.
• Watch what you say. Workers will remember whatever you say on the day you fire them—or in the preceding weeks—in the worst possible light. While you should always avoid making statements that could be construed as discriminatory, you should be especially cautious if you may have to fire a worker.
• Don’t be too kind. Sometimes you may feel compassion for a worker you must fire, but don’t express your feelings in the wrong way. If a worker’s performance is substandard, don’t offer compliments on his job performance. Doing so may make you feel better, but it will only infuriate the worker because it will appear that he is being fired for no reason. And that can easily spark a wrongful-termination suit. Also, when hiring workers, don’t make promises you can’t keep. Some courts have taken general statements, such as “We hope you’ll be with us a long time,” as a promise of perpetual employment.
• Keep quiet. Don’t discuss your reasons for the termination with other employees. It’s enough to say, “Jamie will not be working with us anymore.” Some employers have spoken too freely about the reasons for a departed worker’s termination, only to find themselves in court defending a defamation of character suit.

Excerpted from Fire at Will (NIBM book N235D)

To order, call NIBM at (800) 543-2055 or go to www.nibm.net/fire.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Find out the pros and cons of putting your termination reasons in a written letter. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Q: We want to provide employees who are terminated with a brief letter explaining the termination and informing them about administrative issues like COBRA and returning office keys. How much detail should be included about the reason for termination? A: Termination letters generally fall into two types: those that provide a simple statement of the termination decision (without providing a reason for the termination) and those that provide a reason for the termination. There are pros and cons to each type of letter. Employers generally are not required to put their reasons for terminating an employee in writing. (A few states, including Missouri and Kansas, do require employers to provide a letter with such information as the nature of the employee’s service, the duration of employment, and the truthful reason for termination or separation, but most states do not.)

Accordingly, many employers do not provide a specific reason for the termination because they do not want to limit themselves to the stated reasons if later required to justify their decision. Furthermore, these employers also recognize that the document may be viewed by third parties and become evidence in any lawsuit that results from the action. So instead, they simply state the fact of the termination and its effective date and then provide information on such administrative issues as returning company property, COBRA continuation coverage availability, the availability of severance pay and/or the payout of accrued unused leave (if applicable), and when the last paycheck will be available (if not included with the letter). However, other employers believe employees are entitled to a written explanation and thus give formal notice of the reasons for discharge, in addition to the administrative information. One advantage of a written explanation is that it may prevent the employee from misinforming others about the grounds for its decision. For example, a well-prepared dismissal notice may discourage an attorney from pursuing a claim on behalf of the employee against the employer. _________________________________________________________________ If you provide a statement explaining the termination, the reasons given to the employee for discharge should be consistent with, and supported by, documentation in the employee’s personnel files. This consistency is important because the employee may have access to his personnel files under state law, as the result of a lawsuit, or if a government agency reviews the decision. Any reasons provided should be factual and accurate and should not contain vague or irrelevant comments or unsubstantiated accusations. Your personnel files should include documentation that supports the decision, such as performance evaluations and recommendations that accurately reflect the employee’s abilities, disciplinary records detailing violations, and attendance records. And, as a final precaution, it is always advisable to have legal counsel prepare or review any written termination notice.

 

Say you have an older employee who’s resisting change. What if a management consultant suggests that you find “young, energetic” people to take over? A court ruling last week sends a clear warning: Be careful who you listen to for advice … and where you write it down.
_______________

Case in Point: Dean Inman was a 58-year-old VP of technology at a Virginia manufacturing company. Inman had worked for 17 years but he butted heads with the new company president. He failed to adopt the president’s approach or support some of his decisions. The president gave Inman a negative review.

At one point, the president and another executive met with a management consultant for a strategic review. The consultant suggested the company enlist young, energetic “future people.” The president noted the phrase “young, energetic” on a paper napkin.

Soon after that meeting, the president fired Inman, telling Inman that he didn’t meet the desired “profile” of a technical leader, and that the company needed a “more energetic person” to lead Inman’s department. A 45-year-old employee who had been the vice president of operations replaced Inman.

Inman sued for age discrimination under the Age Discrimination in Employment Act (ADEA). As evidence that age bias was the true firing reason, Inman pointed to his bonuses and the high praise he received at a company meeting just a few weeks before the termination.

The company stuck to its claim that Inman was fired for poor performance. And it argued that the president’s napkin note was meaningless because it only reflected the views of the consultant, who was discussing general personnel matters and had no role in Inman’s termination. (Inman v. Klockner Pentaplast of Am. Inc., 4th Cir., 10/22/09)

What happened next and what lessons can be learned?

The company tried to get the case tossed out on summary judgment, but the court disagreed. It sided with Inman and sent the case to trial. The court pointed to the napkin and said it will be up to the jury to read it and “decide what (the consultant) meant, and, more importantly, what (the president) understood the reference to mean when he wrote it down and whether (the president) adopted the goal of having ‘young, energetic’ workers as his own.”

The ruling also noted that “the jury could also conclude that the deficiencies the employer claimed existed in Inman’s work were exaggerated to cover up the age-based motivation for the termination.”

3 Lessons Learned … Without Going to Court

1. Select consultants wisely. Make sure they understand the EEO laws, so you don’t receive unlawful guidance.
2. Keep it real. If Inman wasn’t performing up to expectations, then don’t offer bonuses or praise.
3. Be careful what you write. Even a dirty napkin can come back to clean your clock.

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By Francis T. Coleman

July 1995
Reviewed June 2006

Discharge or termination of employment, the key employee rights issue is justifiably referred to as “the capital punishment of the workplace”. If it is not handled correctly, the disruptive impact that a disciplinary termination can have on employees and employers can be significant. These basic rules should be carefully followed before making a final decision to involuntarily terminate an employee for disciplinary reasons.

Rule 1: Never summarily discharge.

The first rule that every employer should follow is never to summarily discharge an employee regardless of how serious the misconduct may appear. Even when an employee is apparently caught red-handed violating a dischargeable offense rule, there is simply no reason to terminate on the spot. Appropriate discipline, including discharge, can be imposed following a disciplinary suspension that allows time for a thorough, careful investigation.

Even in circumstances where immediate discharge would appear to be in order, prudent employers will direct the employee to clock out and leave the premises. The employee will then be told that the matter will be investigated, and he or she will be notified shortly as to how it will be resolved. In the meantime, the employee is “suspended subject to discharge pending further investigation.” This procedure gives the employer time to take the following steps:

• Allow time for all parties to cool down, so that an objective and dispassionate investigation may be done.
• Take into custody and examine physical evidence, such as drugs, alcohol, or stolen property.
• Obtain written statements from all witnesses, including the employee under suspension.
• Complete a thorough factual investigation.
• Examine discipline previously imposed on other employees who committed similar infractions.
• If the employee is in a protected category, determine whether he or she has been the victim of disparate treatment or has been penalized by a rule that has a disparate impact on individuals in his or her protected category. Determine if the individual has been the recipient of demeaning remarks or comments related to his or her protected status.
• Review the employee’s past work record and performance.
• Obtain the employee’s account of what happened, including any defenses or mitigating circumstances.
• Have the appropriate decision making officer, official, or manager decide on appropriate discipline.
• Review decision using the final filter process (see rule 5).
• Consult an employment attorney in questionable cases before final action is taken.
• Communicate final decisions to the affected employee in a calm, confidential and thoroughly professional manner.

By following these steps, employers can assure themselves that a thorough, dispassionate, and objective investigation will be done and that disciplinary action will be taken only after a systematic analysis and a full review of all the facts and circumstances bearing on the disciplinary decision have been completed.

If this process confirms that (1) a serious violation of company rules did occur, (2) discharge is the customary penalty for such infractions, and (3) no mitigating circumstances exist to justify a lesser disciplinary action, then the discharge should be finalized and the employee told of the decision as quickly as possible. If, on the other hand, the investigation reveals that the facts were not as first suspected, that similar offenses have in the past received lesser penalties than discharge, or that there are mitigating factors, then the suspension should be lifted and the employee returned to the workforce with the appropriate disciplinary entry placed in his or her personnel file.

In some instances, further investigation may disclose that no rule infraction occurred, that the employer’s initial assessment was factually incorrect, or that the conduct in question simply does not justify disciplinary action. In those cases, employees should be returned to their former position and given back pay for the period of suspension, and all disciplinary references should be removed from their personnel files.

In short, by suspending the employee rather than resorting to immediate discharge, employers gain “breathing space” to deal with what appears to be serious misconduct. Although these procedures may be time-consuming and perhaps costly, they are prudent measures that could save the employer thousands of dollars in back pay and damage awards, legal fees, and other related legal costs. Once again, the proverbial “ounce of prevention” will prove to be a prudent investment.

Rule 2: Get all the facts first to make sure your investigation is thorough, complete, and well-documented.

Normally, the employee’s supervisor, department manager, human resources director, or a member of the human resources staff investigates serious employee misconduct. Those members of management who are chosen to investigate should remember that their role is that of an investigator, not a prosecutor, and they should be open to evidence on both sides. The following list reflects the minimal steps that should be taken to ensure fair treatment during the investigation:

• Compile a thorough written report about all the facts surrounding the incident or incidents, including detailed statements from all witnesses. These should be signed and dated.
• Secure and safeguard all physical evidence.
• Review all relevant personnel and disciplinary records (both those of the employee under investigation and all similarly situated employees).
• Examine all documentation about the incident or incidents.
• Compare discipline given before for similar misconduct.
• Keep all statements, records and information confidential.
• Review the employee’s entire personnel history.

Rule 3: Conduct all employee interviews with care and deliberation.

The Supreme Court in NLRB v. Weingarten (420 U.S. 251 (1975)) held that employees represented by a collective bargaining agent are, under certain circumstances, entitled to have a representative accompany them during any investigatory interview provided they make a timely request for such assistance. An investigatory interview has been defined as an interview the employee could reasonably believe may lead to disciplinary action. The exact circumstances triggering this right, the waiving of this right, the extent of the designated representative’s right to participate, and consequences of failure to accord such a right have all been the subject of numerous decisions by the National Labor Relations Board (NLRB) as well as the court. So too has the question of whether nonunion employees enjoy this same right. The board’s current position on this issue is that nonunion employees are not entitled to such third-party representation.

Giving the employee under investigation an opportunity to be heard is an important aspect of any comprehensive investigation. Frequently, the employee will present an alibi or defense that the employer had not previously considered. No matter how “off the wall” such an alibi or defense may appear to be, it is important for the investigator to seriously consider its credibility, examine its reliability, and evaluate its legitimacy.

In interviewing the employee under investigation, adopt an investigative attitude and approach, not an accusatory or adversarial one. At this stage of the investigation, the interviewer should be open-minded and in search of the facts. If employees perceive that the interviewer has not prejudged the matter and is willing to listen to their side of the story, they will undoubtedly be more cooperative. On the other hand, if the employees believe that the investigator has already made up his or her mind, they will be much more defensive and much less likely to cooperate.

Once the investigator has gathered and reviewed the evidence; evaluated the sources; examined all relevant documentation including the employee’s personnel file and work history; compared how other similar offenses have been treated in the past; and listened to the employee’s explanation of the matter, it is time for the investigator to summarize the findings and make a written recommendation. The written recommendation, in turn, should be carefully reviewed using the final filter process.

In following the above procedure, the investigator should be particularly careful to examine the facts from the employee’s point of view and anticipate legal defenses or other justifications that the employee might assert during the interview or in the future. It must then be determined whether such excuses or justifications constitute a defense to the alleged misconduct being investigated.

Rule 4: Investigate promptly — don’t delay.

If possible, an investigation of employee misconduct that may lead to discharge should be completed within 48 to 72 hours after the event or events giving rise to the investigation, and the employee should be told of the final decision within 24 to 48 hours thereafter. Of course, there may be situations when this timetable cannot be met, for example, if a key witness is unavailable or scientific testing must be done. However, the investigation should be done as quickly as possible. Unwarranted or unnecessary delay makes the investigation suspect and gives the impression that the employer is trying to build a case (when it doesn’t have one to begin with) or that factors other than the merits of the case have influenced the outcome. Fairness to all concerned dictates that the investigation be started and completed quickly.

Rule 5: Always use the final filter approach.

Once the initial investigation is completed and termination is recommended, employers should conduct a final filter review. The purpose of the review is to analyze the investigator’s findings and recommendations, determine if they are complete and accurate, and decide whether these findings and the recommendations that flow from them should be adopted, rejected, modified, or whether further investigation is needed before making a final decision.

The individual conducting the final filter review should not, if at all possible, have been previously involved in the investigation nor, if possible, should that person be involved in the direct line of supervision over the employee being investigated. In other words, this individual should be as unbiased and objective as possible and have a fresh outlook on the investigation and its outcome.

The duties of the “final filterer” include the following:

• Determine if the investigation is complete. Return the report and recommendations to the investigator if incomplete.
• Determine if any biases, intentional or unintentional, influenced the report and its recommendations.
• Examine the credibility of the witnesses and the accuracy of their statements.
• Evaluate all pertinent evidence bearing on the disposition of the case.
• Determine if the discharge is directly linked to a violation of written company rules or is otherwise sufficiently tied to violation of company policy for which termination is authorized.
• Judge the appropriateness of the punishment in light of the employee’s entire work history and record.
• Ascertain whether the employee in question falls into a protected category and, if so, determine whether his or her rights have been violated in any way.
• Determine whether the recommended discipline comports with the discipline awarded other employees who committed the same or similar infractions. (In other words, see that no disparate treatment has been accorded the individual in question.)
• Determine whether the discharge violates any legal obligation owed to the employee in question, that is, ensure that the company’s internal protections and procedures were afforded the employee, and that all company policies were complied with.
• Confer with the person who has final discipline decision making authority and inform him or her of the “final filterer’s” recommended action (if the person making the final decision is someone other than the individual who conducted the final filter review).

Whenever the proposed termination involves close factual questions, possible allegations of disparate treatment of protected employees, or involves significant legal questions, it is prudent to seek legal assistance before finalizing any termination decision. An employment attorney can complement the final filterer and serve as a safety check to make sure litigation is complete and that all relevant information needed to make a legally sound decision has been obtained. Armed with a copy of the investigative report and final filterer’s recommendation, an attorney can help the employer evaluate whether the proposed discharge can be sustained if later challenged in court or elsewhere, or whether other disciplinary action might be more appropriate in light of applicable legal considerations. An employment attorney also can provide insight into other potentially troublesome considerations surrounding the proposed discipline, such as how the termination would affect employee morale or how it could serve as a basis for generating a class action lawsuit or possibly trigger union organizing activity. More important, an employment attorney can help evaluate the likelihood of subsequent legal action if the decision to terminate is carried out and can provide an assessment of the employer’s chances of successfully defending itself against any such ensuing legal challenge.

This process can be eased by regular conferences between the employer and employment attorney. In this way, legal counsel can stay up to date on the employer’s current employment policies and practices and the employer can get legal advice promptly. Employment attorneys, by virtue of their legal background, training and their experience with a broad range of employment legal issues, can provide employers with practical, common-sense answers to help them formulate legally defensible disciplinary decisions. Thus, when a potential discharge case arises, a short telephone conference may be all that is needed for counsel to review the facts and give an informed, sound recommendation that will protect the employee’s best interests.

Rule 6: Pinpoint the basis of the discharge.

Many employers fail to identify or articulate the reasons for termination. This mistake could be fatal. Employers sometimes cite reasons for a discharge that they cannot prove or substantiate, while at the same time overlook provable reasons that would amply justify termination.

Most employers do not give the employee a written copy of the reason for their discharge. Instead, they orally communicate the basis for the discharge and then record it somewhere in the employee’s personnel file. This information is discoverable during an administrative investigation or lawsuit, and the employer should be prepared to defend its action on the basis stated.

A corollary to Rule 6: whenever possible, identify the specific rule or policy that the misconduct in question violates. The more specific the better. For instance, if the employee is terminated for absenteeism, spell out the specific provision of the absentee policy that was violated.

Rule 7: Whenever possible, inform the employee in person.

Once the final filterer has completed his or her assignment, with the aid of an employment attorney, if necessary, and the recommendation is to discharge the employee in question, the management official authorized to carry out the decision should be informed. This decision-maker might be anyone from the president of the company on down, but preferably should be a high-ranking executive in the organization. As stated earlier, this decision is so important and has such potentially serious consequences that only a high-level official should be allowed to exercise this authority.

The decision maker should review the entire record and consult with the investigator, final filterer, and, if necessary, the employment attorney. In rare cases, with the advice of counsel, the decision maker may wish to speak with the employee under investigation to verify certain aspects of the report or seek additional information before making a final decision. However, this reviewing process should not be unduly prolonged.

When the employee is told about the decision to terminate the employment relationship at least one other management official should be present. The reasons behind the decision should be explained as objectively and unemotionally as possible. This is not a time for personal recriminations, finger pointing, emotional outbursts, or long, strident harangues. The decision should be announced at the outset of the meeting, followed by a brief explanation of the basis for the employer’s decision. The employer representatives should avoid being drawn into a debate or confrontation, and under no circumstances should the meeting become a fault-finding session or heated argument.

Frequently, after the decision has been communicated, the employee will want to take issue with or challenge the employer’s action. While the employee should be given an opportunity to “state his or her case” and “blow off steam,” he or she should not be allowed to embark on a lengthy diatribe. If the meeting appears to be getting out of hand, the decision maker should end the meeting by simply stating, “We’re sorry you feel that way, but that is our decision.” There is no point in engaging in protracted discussion or debate. At this stage, the investigation has concluded. It has been fully reviewed, and the final decision made. The purpose of the termination meeting is simply to convey the management’s decision to the employee, not to rehash it.

The discharge meeting should conclude on a friendly note, with the management representative adding, “We’re sorry your employment at the company had to end this way. We wish you well in the future,” or a similar conciliatory closing remark.

At some point during the meeting, the employee should be told when to pick up a final paycheck and have his or her termination rights explained. A number of states have laws specifying that terminated employees are entitled to payment of wages earned within a specified period following termination. This may be as soon as the last workday or in some cases the next regular payday. In addition, some states have laws that treat accrued fringe benefits such as vacation, sick leave and other paid time off or benefits as wages that must be paid on termination. It is important to review those state requirements since many states impose stiff penalties for failure to comply. When employees collect their final paychecks, provide a complete written explanation of COBRA rights, severance pay, accrued vacation or sick leave, or other fringe benefits to which the employee may be entitled.

There may be occasions when it is not advisable to meet personally with the employee in question to convey the termination decision. In cases where the employee has a history of violence or psychological problems or where threats have been leveled at company officials, it may be prudent to avoid a personal confrontation. Workplace violence is escalating at an alarming rate and there is no reason to trigger a potentially explosive situation by requiring a troubled employee or one prone to violent outbursts to attend a meeting where emotions will undoubtedly run high, and matters could easily get out of control. In these instances, prudence dictates avoiding a face-to-face confrontation.

In these cases, counsel should be consulted to help draft a termination letter. Since this letter will undoubtedly be a critical piece of evidence in any post-termination legal challenge, it should be carefully drafted and accurately reflect the reasons for the discharge. The employee’s final paycheck and a description of other benefits to which the employee may be legally entitled should accompany the letter, or the employee should be informed when the final paycheck and this information will be forthcoming.

Communicating the termination decision should conclude the matter. Thereafter, no management official should comment on the company’s action, either with the discharged employee, other employees, the public, inquiring prospective employers, or other third parties. All inquiries should be directed to the individual assigned to respond to employment-related matters concerning current and former employees, and that individual should scrupulously follow the employer’s established policy.

There is one possible exception to the general rule of maintaining a policy of silence following discharge. If the termination has caused unrest among the discharged employee’s fellow workers or if confusion or misinformation surrounds the discharge, the employer may wish to “set the record straight.” In those circumstances, before communicating any information about the termination and the reasons behind it, the employer should first consult with counsel to properly phrase any communication on the subject. Otherwise, the employer may be providing the former employee with added ammunition for launching a legal attack.

To summarize, once the decision to terminate has been reached, communicate it in person quickly, tactfully, and dispassionately. Then pay the employee what he or she is legally owed, conclude on a cordial note, and discuss the matter no further, unless absolutely essential to alleviate employee concerns and then only after your communication has been cleared by counsel.

Rule 8: Always use progressive discipline and keep appropriate documentation.

Workplace disciplinary systems are grounded on the theory of rehabilitation, not punishment. By using appropriate disciplinary measures, employers try to send a message to errant employees and let them know their performance must improve or more serious consequences will follow. The employer’s disciplinary measures should be constructive, and they should be directed at letting employees know that their conduct or performance has slipped below acceptable norms and that improvement is both necessary and expected. If the employee heeds constructive counseling, well and good. The caution signal will have accomplished its purpose, and a potential employment problem will have been averted. If the employer’s counseling efforts go unheeded, stronger measures may have to be used to impress on the employee the seriousness of the situation and the need for immediate corrective action.

In a unionized setting, arbitrators are frequently called on to determine whether the grievant has been terminated for just cause. In fact, there are thousands of arbitration decisions defining what constitutes just cause, given the facts of the individual case. In determining the question of just cause, arbitrators frequently examine whether the principles of progressive discipline have been followed. These principles require employers to gradually increase the level of the discipline administered, until the employee is sufficiently put on notice that future transgressions will result in termination. Thus, employees are made aware that their conduct or performance is considered unacceptable and that they must improve or face the prospect of termination. If employees continue to ignore these warning signals, arbitrators generally uphold their discharge.

Although nonunion employers are not under any legal obligation to follow a just cause standard (unless they have imposed this standard on themselves by their written policies), they should follow these same principles. As is frequently the case, this is an instance in which legally acceptable practices and sound management procedures coincide. Encouraging employees to improve their performance through progressive discipline simply makes good business sense, particularly in light of the investment that the employer has already made in recruiting, hiring, and training the employee, to say nothing of the costs that would be incurred to hire a replacement.

Both government investigators and reviewing courts tend to uphold an employer’s disciplinary action if it establishes a systematic foundation of counseling and warnings which clearly state that future misconduct would jeopardize the employee’s continued employment. Such a warning notice is often given in a “last chance” letter, stating that the employee is being given one final opportunity to conform his or her conduct to acceptable standards of behavior performance, or face termination.

A last chance letter should contain a brief summary of the employee’s disciplinary and performance history, recount previous attempts to inform the employee of the seriousness of the situation and emphasize clearly the need for immediate reform. It should end by plainly spelling out that further misconduct or continued unacceptable performance will result in termination. Because a last chance letter is an important document that could play a key role in any subsequent legal contest, it should be reviewed by counsel before it is given to the employee.

A last chance letter should be personally delivered to the employee during a meeting called for this purpose, and another management official should witness its transmission. At this meeting, the seriousness of the situation should be forcefully reiterated and the employee should be asked to acknowledge that he or she understands that any further impermissible conduct or unsatisfactory performance will result in termination. This last chance meeting also gives an employer the opportunity to observe the employee’s reaction to the ultimatum and may indicate whether the employee will challenge subsequent disciplinary action. If a challenge appears likely, counsel should be consulted before any subsequent disciplinary decision is finalized.

Rule 9: When you are done with your homework, go for it.

The great financial costs and other serious consequences associated with improper and illegal employment termination decisions have been stressed. However, this discussion would not be complete without observing that sometimes an even more costly termination decision can be the one that is never made.

As expensive as an ill-advised termination decision could be, the decision to terminate an unsatisfactory employee may prove far less costly than continuing to employ someone whose performance is not only unacceptable, but whose continued presence in the workforce undermines employee morale and creates a bad example for others to follow. Some employees not only fail to abide by established rules of conduct or conform to established performance standards, but they also constantly denigrate the employer and its policies to anyone who will listen. They are not averse to letting it be known that the employer is giving them and the rest of the employees “a raw deal”. These individuals can cause incalculable damage to an organization and must be separated for everyone’s benefit. For some inexplicable reason, many employers delay confronting employees like this until it is too late. For instance, despite the fact that an employee like the one described may have a work history that would provide ample basis for disciplinary termination, many employers procrastinate. Instead of documenting the employee’s failings and following progressive disciplinary principles, they drift along, reluctant to take the necessary action.

Later, after this chronically malcontent employee foments a union organizing campaign, instigates a vexatious OSHA complaint, files a spurious workers’ compensation claim, or triggers other unwarranted charges with a government agency – the employer finally takes decisive action, only to find that it waited too long. When such a termination is later challenged, as it inevitably will be, the investigating agency will undoubtedly conclude that the real reason behind the discharge is employer retaliation because the employee exercised his or her legally protected rights. The investigator’s conclusion will be bolstered by the fact that the employee’s conduct before the discharge was no worse than it had been throughout his or her employment history. Since the employer had not acted to terminate the employee earlier, the investigator will undoubtedly conclude that the real cause of the termination could only be the employee having engaged in legally protected activity and that any other reason cited by the employer is nothing more than a pretext. Consequently, once employees have engaged in some legally protected activity or exercised a legally protected right, their termination will be considerably complicated regardless of how bad their previous work record may have been or how justifiable termination might otherwise be.

Failing to separate this type of employee from the workforce at an appropriate time costs the employer considerable money in lost productivity, through both the employee’s substandard performance and the poor example he or she undoubtedly sets for other employees. Of course, such individuals may challenge any decision involving their termination, regardless of when the decision is made. Yet, even though the termination decision may be very costly, in many instances failure to take timely and appropriate decisive action will be far more costly in the long run.

Rule 10: Beware of the set-up.

By this time, the reader is undoubtedly aware that after the termination conference, the next meeting with the ex-employee may well take place in an attorney’s office. What most employers do not realize, however, is that in many cases employees have seen the handwriting on the wall and retained an attorney before their actual termination. Consequently, employers should become aware of telltale signs that indicate they are being set up. Requests by employees to see or copy their personnel records and possibly those of other employees, requests that the employer put statements in writing, conversations focusing on the employee’s protected status, detailed inquiries about disciplinary procedures or company policies and benefits, questions concerning comparative treatment with regard to other employees, and other similar actions may be indications that employees have been furnished with a detailed game plan to put the employer on the defensive. Employers are well advised to consult their own legal counsel once they determine this to be the case.

In setup situations, employers must follow exactly the same procedures with the problem employee as they do with everyone else. One of the worst things that an employer can do under these circumstances is to single out the employee in question for special attention or treatment. Such conduct will merely reinforce the employee’s contention that he or she is being subjected to a double standard. If it can be established that the employee has been singled out for special treatment, the employer’s motives will be impugned, and subsequent disciplinary action will be challenged on the basis that the “employer was out to get me.” Plaintiff’s attorneys like nothing better than to portray their client as the victim of an employer inquisition or vendetta.

There is no reason to panic if it is discovered that an employee is laying a foundation to contest future disciplinary action. By following the procedures outlined earlier in this chapter, employers can achieve the same amount of success in defending against legal challenges by counseled employees as non-counseled ones. The key is to not overreact by making the employee a designated target. Instead, the employer should continue to apply to the employee in question the same rules and procedures that are applied to all other employees.

Francis T. Coleman was a founding principal of Coleman, Coxson, Penello, Fogleman and Cowen, of Washington, D.C., specializing in labor and employment law. He now practices with Williams Mullen, and has assisted SHRM in conducting a Congressional Compliance Seminar to help Congressional staffs learn about employment law issues. The article is intended as general information and is not a substitute for legal or other professional advice.

by Allison West, Esq., SPHR

“Document, Document, Document.”

Employment attorneys say it all the time. In fact, they’re incapable of saying that word only once because documentation relating to performance management and discipline is absolutely critical.

The reasons are obvious. The quality of your documentation goes to the heart of your credibility as a manager or HR professional.

The person reading your documentation should walk away knowing who, where, when, how and most important, the why behind any decisions … and that you treated the employee consistently and fairly. Anything less and your documentation becomes Exhibit A for the plaintiff.

Mistakes, Mistakes, Mistakes

One big problem is getting each manager to actually document performance and disciplinary discussions. Not surprising, documentation—when it is created—is often too ambiguous, vague, biased and never actually puts employees on notice of any performance or behavior issues.

Here are three of the most common documentation mistakes and how you can avoid them:

1. Surprise!

No employee should ever be surprised when he or she is terminated for poor performance or a disciplinary reason.

Here is a common scenario: The manager has put Betty on super-secret probation for the past three years—but never tells her about it. Just recently, the manager decided enough is enough. He wants Betty terminated. In-house counsel reviews the personnel file before signing off. Much to counsel’s surprise, Betty’s performance actually looks pretty good.

When in-house counsel asks the manager why the file doesn’t reflect his true opinion of Betty’s performance, the manager says, “Well, she’s sensitive, and I didn’t want to hurt her feelings.” The resulting ambiguous documentation doesn’t put the employee on notice of the problems.

Your documentation must be direct, include specific expectations and the reasons the employee says she’s not meeting those expectations.

 

2. Legally explosive words

Documentation is black and white. When third parties—say a judge, jury or plaintiff’s attorney—read a manager’s documentation, they can only go by what is written down.

Often, managers write absolute expressions such as “always” and “never,” as in “Hillary never turns in her reports on time.” In reality, Hillary informs you that she did hit her deadline just last month. Using these types of absolutes without being 100% certain will undermine your credibility and hurt your case in court.

Choose your words carefully. If you want to highlight your concerns to Hillary, simply state the facts: “In the past three months, you turned in your weekly reports on time only once.” This way, you’re more accurate and accomplish what you wanted in a more professional tone.

3. Lack of follow-up

Solid documentation must include regular follow-up discussions.

Take this example: A manager informs Bob about his performance deficiencies and gives him a step-by-step improvement plan. Documentation is solid up to this point. Unfortunately, Bob continues to struggle for the next six months. But the manager fails to ­­­document any follow-up conversations or efforts made to assist Bob. Now the manager wants to terminate Bob.

The problem: The documentation is incomplete. The judge, jury or plaintiff’s attorney that reads it will assume the manager put Bob on notice yet did nothing over the next six months to ensure Bob was getting the assistance.

Proper documentation would include the coaching sessions, Bob’s stated reasons for not meeting his goals and efforts by the manager to help Bob. Also, document that Bob knew he could be terminated if he did not meet the stated expectations.

The bottom line: At the end of the day, your documentation must be accurate, state the facts, include the employee’s explanation and show all the efforts the manager made to help the employee succeed. Anything less, well, you know what happens.

________________________________

Author: Allison West, Esq., SPHR, is a former employment law litigator and the founder of Employment Practices Specialists, a training and consulting firm based in California.

Tips for documenting employee discipline

Be consistent. Don’t write up one person for a behavior that you ignore in other employees.

Be specific. Example of poor docu­­mentation: “Employee was late twice in the past two weeks.” Better: “Employee was 30 minutes late on Sept. 28; reason given: traffic. Employee was 45 minutes late on Oct. 4; reason given: overslept.”

Be clear and factual. Note the policy or procedure that was violated. Date the document, including the year.

Avoid emotional content, including personal impressions (“I think …”), labels (“He’s a whiner …”), adjectives (“very unproductive …”) and drawing conclusions about the reasons. (“It’s probably because of her divorce.”)

Ask the employee to sign and date the document if it’s going into his or her personnel file. If the employee re­fuses to sign, note that on the document.

Lawsuits by employees against their employers have grown tremendously in the past decade. Sometimes those lawsuits have merit, sometimes they don’t. But, either way, those lawsuits cost time and money to fight—money that is better spent on product development, training and raises.

Even worse, some laws—including federal overtime law and the Family and Medical Leave Act—allow employees to sue their supervisors directly, meaning a manager’s personal bank account could be at stake.

Most lawsuits are not triggered by great injustices. Instead, simple management mistakes and perceived slights start the snowball of discontent rolling downhill toward the courtroom.

Here are 12 of the biggest manager mistakes that harm an organization’s credibility in court. Use these points as a checklist to shore up your personal employment-law defense:

1. Sloppy documentation

Most discrimination cases aren’t won with “smoking gun” evidence. They’re proven circumstantially, often through documents or statements made by managers. Documents, particularly e-mail, can help the employee show discriminatory intent. The lesson: Always speak and write as if your comments will be held up to a jury some day.

2. Not knowing policies, procedures

Courts expect supervisors to know their organization’s policies and procedures. If a manager admits ignorance, legal experts say juries typically view that as purposeful, not forgetfulness.

That’s why it’s vital to make sure you understand company policies. Don’t make decisions based on a vague memory of a policy. Double check it or check with HR before taking action.

3. Inflated appraisals

Performance reviews are one of the most important forms of documentation, yet managers sometimes inflate the ratings for various reasons. If a manager later tries to cite “poor performance” for that same person’s termination or demotion, those overly positive appraisals create a heap of credibility concerns.

Be direct, honest and consistent.

4. Shrugging off complaints

Turning a blind eye to any employees’ complaints of unfairness or perceived illegal actions is a guaranteed credibility buster. Comments like “I’m not a babysitter” or “Boys will be boys” will hurt employee morale and jeopardize your standing in court.

5. Interview errors

It may be easy to answer the question, “Why did you hire that person?” But managers often run into trouble when they have to answer, “Why did you reject certain other candidates?”

That’s because rejection decisions typically aren’t well-documented, and the decision-maker may not recall the reasons later.

During interviews, stay away from any question that doesn’t focus on this central issue: How well would this person perform the job he or she has applied for? Never ask about age, race, marital status, children, day care plans, religion, health status or political affiliation.

6. Changing your story

If an organization changes its reasoning for making an adverse employment decision (firing, discipline, demotion, etc.) in midstream, its credibility is shot.

Be straight with employees from the start about reasons for discipline. Don’t sugarcoat your comments.

7. ‘Papering’ an employee’s file

Most managers hear the mantra, “Document, document, document.” But it’s possible to over document, especially when it occurs right before a firing. Courts will be able to see through a rush of disciplinary actions cited in the days before termination.

Be consistent in documenting negative and positive performance and behavior of employees. It’s best to keep a “performance log” for each employee, regularly making notes in each file.

8. Being rude, mean-spirited

An organization can have the best case in the world, but if the key supervisor comes across as rude, insensitive and mean, the attorney’s job of selling the case to the jury will be much harder.

Use the golden rule in handling staff.

9. Careless statements to feds

When responding to charges filed with the EEOC or state agencies, employers often have to submit position statements. Managers may be called upon to help provide some of that information. You can bet the employee’s attorney will review these statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep your story consistent.

 

10. Lack of legal knowledge

Juries will expect—and the plaintiff’s lawyer will encourage them to expect— that employers stay abreast of developments in employment law. Refresh yourself regularly on your organization’s policies, read communications sent from HR and, when in doubt, ask questions.

11. Dictating accommodations Under federal law, employers must make “reasonable” workplace changes to accommodate an employee’s disability. How to choose those accommodations? It must be a give-and-take process to reach a solution, the law says. Managers too often try to dictate the solution.
12. Firing employees too fast Managers who fire without first trying to improve the worker’s performance will appear insensitive and potentially discriminatory in court. Conversely, managers who try to improve things before resorting to firing will stand a better chance of avoiding a lawsuit.

 

In most states, workers are employed on an “at will” basis. That means employers typically may terminate workers at any time for any legal, nondiscriminatory reason.

However, at-will status doesn’t mean you won’t get sued. More and more employees are filing and winning wrongful-termination lawsuits that allege they were fired for some discriminatory reason or in retaliation for engaging in protected activity. Employees’ lawyers often look at wrongful-termination suits as easy pickings, good at least to squeeze a quick settlement from an employer.

Termination pay is one of your most complex and confusing duties. Don’t go it alone … and don’t try to guess at the compliance rules. The risks are way too high. Make sure you have the information you need to make the right decisions and avoid expensive fines and lawsuits.

The key, then, is prevention. Minimize your exposure to wrongful-termination claims by following these six steps:

1. Use progressive discipline

Establishing a step-by-step process for discipline is the most reliable way to protect your organization from wrongful termination charges.

Clearly outline the behaviors that may trigger discipline and the actions you will take as a result. That ensures fair and consistent treatment for poor performers. Make sure supervisors know they must follow the procedures. A written policy is a powerful defense in court.

2. Publicize your policies

Ensure that everyone is on the same page by including your progressive discipline policy in your handbook. Have employees read and sign it. In addition to providing documentation in case of lawsuits, this gives employees a chance to correct performance problems.

Advice: Regularly review all policies for relevance. Attendance and misconduct policies, for example, probably don’t change often, but your dress code may.

3. Regularly review performance

Employees who are surprised by firings are more likely to sue. Also, employees often introduce in court inconsistencies between performance evaluations and adverse decisions to demonstrate that the company’s reasons for terminations were just excuses to fire employees for other, unlawful reasons.

More lawsuits and fines are triggered by termination mistakes than at any time during the employees’ tenure. And pay mistakes lead the way. Make sure you’re in compliance.

4. Document all warnings

Develop forms for oral and written warnings. Use them religiously. Include a section that asks the manager to describe the problem and what the employee was asked to do to improve it, plus any warning about what would happen if the problem resurfaced. Finally, document what the employee said in response and ask the employee to sign it.

5. Beware constructive discharge

Some managers try to sidestep the unpleasant task of firing by resorting to constructive discharge. The logic: If I make an employee’s work experience intolerable, he or she will choose to quit.

This exposes your organization to charges of discrimination by the targeted employee. The employee will argue in court that he or she was singled out for special, unfair treatment.

6. Watch your timing

Avoid firing employees immediately after they have filed complaints. One test the courts use to determine whether a worker was fired in retaliation for a complaint is timing. Firing workers just after they file a complaint or return from protected leave is asking for legal trouble.

In such cases, it is best to wait and build an airtight case for dismissal before acting.