I regularly represent both employers and employees in litigation concerning terminations of employees for misconduct or unsatisfactory performance. On occasion, I am also asked to mediate such disputes. After 28 years, you begin to recognize where the “trigger events” leading to lawsuits lurk.
There can be no doubt that bad feelings and some litigation are unavoidable when employees are discharged, even under the fairest disciplinary processes. Yet, I am frequently struck by how some employers risk wrongful termination claims by failing to apply some basic litigation avoidance precautions when considering employee terminations. How an employer treats an employee through the disciplinary process is a critical piece of evidence in a trial or labor arbitration. Juries particularly and some arbitrators may be inclined to infer an improper or illegal motivation in a termination based in part on a belief that an employee was treated unfairly or with a lack of respect. With that in mind, I offer three very basic rules for handling situations that may result in an employee termination:
1. Don't Ever Act Immediately. Immediate disciplinary decisions are often made out of anger, or at least the “heat of the moment." Immediate decisions are typically made by a manager caught up in the circumstance and who may need to be removed from the process, or at least given some time to "cool off" and reflect. Make use of administrative suspensions with pay pending an investigation. Such suspensions typically need last no longer than 1 to 3 days. That temporarily removes the employee from the workplace without any financial loss to her and allows the employer time to investigate the grounds for discipline. One United States Circuit Court of Appeals recently held that an administrative suspension with pay is not an adverse action under federal employment discrimination statutes, so employers can be comfortable using that device in appropriate settings.
2. Two (or More) Heads Are Always Better: When possible, no one manager should hold unilateral authority to fire. While many employers require that a manager above the one recommending termination must approve the recommendation that still may not be an ideal arrangement. Managers from the same department may have the same attitude and possible biases against the employee under consideration for termination such that the higher level review is not truly independent and unbiased. If your organization has a trained human resources professional, she certainly should be involved at the outset. Even then, you want to avoid "rubber stamp" approvals. You need to be satisfied that your human resources employees have the authority and backing of management to voice opposition when merited. One practice I’ve seen work for small to mid-size employers is to round-table serious disciplinary issues among several equal level managers from various departments. This accomplishes two things. First, uninvolved and unbiased equals may be inclined to express appropriate reservations that may avert a poor and costly decision. Second, if that group approves a termination and someone one day must explain the decision-making process in a court or arbitration, the employer will appear much more deliberative and fair.
3. Treat Disciplined Employees with Respect. While terminated employees are usually upset about being fired, they do recognize when they have been treated with dignity and respect in the process. Sometimes, that alone may prevent a call to a lawyer. The "do's and dont's" under this rule are too many to discuss here; but three points come to my mind very quickly. One is to communicate with the employee throughout your investigation and do not keep him in the dark about the status of your investigation. You certainly should not share all aspects of your investigation, but do provide a timeline and advise where you are with respect to it. Another is to allow the employee to communicate his side of the story, at length if necessary. Finally, unless absolutely necessary, try to eliminate or at least minimize the indignity of office clean-outs during work hours and very obvious supervised escorts from the building. You certainly need to make an assessment of any real risk to company property or of potential violence in every termination event; but the "one size fits all" treatment of all employees as security threats really is not necessary. There are some simple practices seasoned human resources professionals and employment lawyers can recommend to minimize heaping insult upon injury, while still protecting company property.
The best way to avoid making poor decisions with employee discipline is to involve legal counsel early in the process. The small investment in advice at that stage will pale in comparison to the expenses and headaches associated with litigation.