To reduce problems during employee terminations, employers should carefully review their policies on performance appraisals, discipline, and employee terminations and consider taking the following:
1. Include on job applications a notice that only written representations and promises of the employer will be enforceable.
2. Be sure the job description covers all the tasks the employee will be expected to perform. A worker dismissed for an inability to perform a task not listed in the job description may be able to file a wrongful discharge claim.
3. Add an at-will policy statement to all employee handbooks, and delete anything that makes it sound as if the company has limited its rights to discharge.
4. Warn supervisors and managers not to give oral assurances of job security to applicants or employees.
5. Try to ensure that performance appraisals are candid. Managers should avoid ambiguous, satisfactory-sounding reviews that would not support the employer’s position in the event of a subsequent wrongful discharge suit.
6. Whenever an unsatisfactory employee appraisal is inconsistent with earlier evaluations, management should investigate the matter and include a written report of the review in the employeeÕs personnel file.
7. Establish and apply uniform, progressive disciplinary standards to avoid charges of discriminatory treatment.
8. Make sure that supervisors handle performance appraisals objectively so that problems are identified and remedial actions and timetables are specified.
9. Employees should be required to read and sign written performance appraisals and be allowed to add their own comments. This step establishes a clear record that will be hard to deny or dispute if the appraisal is questioned in the future.
10. Make sure complaint resolution procedures are credible and work properly. This is one of the most effective ways to prevent wrongful discharge lawsuits because it provides opportunities to correct misperceptions and to rectify mistakes internally.
11. Train supervisors to record all significant employee problems so that subsequent discipline or discharge actions are documented and can be justified.
12. Require supervisors to avoid spur of the moment terminations when emotions may be out of control. Utilize suspensions to provide time for investigations, documentation and careful analysis.
13. Provide for internal review of all termination decisions before implementation. The reviewing person or persons should be experienced in making employment decisions and understand employment law. This process can provide an objective review of the documentation and steps leading to termination and can help assure that the process is being administered fairly and consistently and that the termination action fits the circumstances.
14. Conduct the termination notification privately and have at least two members of management present. Have a written termination statement that is carefully and accurately written so as to minimize allegations of defamation or intentional infliction of emotional distress. Give the employee the opportunity to review, comment on, and sign the statement and if the employee refuses to sign it, make a note of that fact.
15. Make sure any termination is discussed only with persons on a need to know basis to limit the potential for claims of defamation, invasion of privacy and emotional distress.
16. Consider negotiating with the terminating employee a general release of all claims relating to the employment relationship. Such an agreement may be appropriate in situations where there is a high probability that the employee will take legal action because of the termination. However, if one is used, it should be drawn by legal counsel experienced in this type of document, as there are a number of elements that need to be included. There may be certain circumstances where such agreements are not appropriate.
17. Conduct exit interviews and inform workers of the specific reasons for a termination. Exit interviews can be used to correct misperceptions about the termination and to uncover and defuse a potentially litigious situation. Outplacement counseling is also useful.
18. If you feel you should call your lawyer – DO!
This article was provided by Mike Lissau, an employment law expert with Hall Estill. He can be reached at mlissau@hallestill.com.
This article originally appeared in The Business Owner Journal, the periodical of choice for owners of small and midsize private businesses. All rights reserved, D.L. Perkins LLC. © 2012.
This publication is intended to provide general information on the subject matters covered. It is sold and distributed with the understanding that neither the publisher nor any distributor or advertiser is engaged in providing legal, tax, insurance, investment or other professional advice. The advice of a qualified professional should be sought before any reader applies a concept presented herein to his or her particular situation or business.
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