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Terminations of employment are never easy.  Employees are often upset, may feel they have been treated unfairly, and all too often believe they have a legal claim against their employers.  While there is no way to prevent disgruntled former employees from suing, certain steps taken by employers during the course of employment can be of great use to employers in the event of litigation.  Here are several issues to remember when conducting a termination:

  1. The Empty Personnel File:  Sometimes an employee will be terminated for performance-related reasons, but the employee’s personnel file will have no record of any performance issues whatsoever.  This absence leaves employees free to allege that the performance issues were a mere pretext to cover up the real (illegal) motive behind their termination.  Our motto is, “If it isn’t written down, it didn’t happen.”  For example, a juror may question why, if an employee was supposedly late all the time, there were no records of the tardiness in the file.  Keep accurate records of any and all performance issues. 
  2. The Late-Papered File:  The flip side of the empty file is the file that’s full of performance issues – all written in the three weeks prior to termination.  Sometimes an employee can work for years without anything being put into his or her file.  Then, once the employer notes issues with the employee’s performance, the employer starts papering the file, and in quick succession the employee is terminated.  Employees may be able to contend that the recent file-keeping is nothing more than a set-up.  It is therefore important to keep periodic, accurate records throughout the course of the employment relationship. 
  3. The Sainted Employee Termination:  Many employees receive periodic or ad hoc evaluations.  All too often, the person(s) conducting the evaluations are reluctant to actually write down specific criticisms.  Then, when the employee is terminated for performance reasons, the employee is able to point to the absence of criticisms in his or her evaluations (and often to recent merit raises).  While it may be difficult for some to be explicit with criticisms, there is a way to be critical (for example, by noting areas for improvement) without being cruel.
  4. The Mis-Direction Termination:  Employers often soft-pedal the real reasons for a termination when they do not want to come right out and say that the termination is performance related.  Often, employers will say that they are “restructuring” or “don’t have the work right now.”  Therefore, even if a slow-down is part of the reason, if performance is also a reason, employers should give that reason during the termination.  For example, if the employer gives lack of work as the reason, and then later hires a replacement, it will not be credible to say that the real reason for termination was performance issues.  (By the way, your out-of-work former employee will be checking the want ads and is likely to see your ad for his or her replacement.) 
  5. The (Apparent) Class-Based Clean Out:  While you can’t treat employees differently based on their race, gender, or national origin you should be aware of the make-up of your work force.  If an employer is laying off several workers, consider whether all of them are members of a protected class.  Similarly, if only one employee is being terminated, is he or she the sole member of a protected class?  Always be prepared to have a good explanation for the termination – and documentation.
  6. “Just Walk Away Renee”:  Summary terminations, while sometimes necessary, are almost always perceived as being harsh.  One way to lower the risk of lawsuits is to offer employees severance pay in exchange for a release of all claims arising from their employment.  Obviously, the more severance an employer can offer, the more likely the employee is to sign a release.  Be as generous as you can reasonably be. 
  7. Just Whistle(blowing) Past the Graveyard:  While it should be obvious that employers cannot terminate employment based on the employee’s race, gender, etc., retaliation claims are sometimes less obvious.  When preparing a termination, the employer must consider whether the employee recently made any complaints (for example, of discrimination or other illegal conduct) which the employee may perceive as the trigger for the termination.  Retaliation claims can be based on complaints an employee has made about conduct directed against a co-worker, too.  Check with all supervisors or others to whom the employee may have complained, officially or unofficially. 
  8. The Final Paycheck Two-Step:  When a termination is planned, have the final itemized paycheck ready, with all accrued unused vacation pay.  If it is not possible to have the paycheck ready, consider keeping the employee on the payroll until the next scheduled payday.  Even a little late pay starts the waiting time penalty clock running. 
  9. Every Crime Doesn’t Deserve the Death Penalty:  Employers often underutilize punishments such as suspensions, and go straight from one (or no) warnings to termination.  If there is a serious performance issue that merits more than just a write-up, consider suspending the employee without pay.  This is a serious discipline, which should get the employee’s attention.  If termination is later warranted, it will provide evidence that the employer had previous issues with the employee’s conduct.
  10. Handbook Says What?:  When considering a termination, check your handbook.  Did you follow your own disciplinary procedures?  Is the conduct that is the basis of the termination prohibited in the handbook?  If so, this is a good fact showing that the employee had notice of what was expected, but fell short.  To the contrary, is the reason for the termination not justified?  For example, some employees have the right to take time off for certain activities related to their children’s schooling.  If you plan to terminate an employee for excessive absences, check your handbook to determine whether the employee is entitled to the absence, and wasn’t out on protected leave. 

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