Hire and Employ Wisely to Reduce Employee Termination Problems

When it’s time to terminate an employee, most of the cards have already been dealt. If you’ve failed to play the game wisely and thereby hold a bad set of cards, there’s not a lot you can do to improve your hand.

The good news is, there are just a few basic things you need to do to reduce employee termination-related problems such as litigation. Here they are:

Have a Written Employment Policy That Contains the Following:

Statement of Non-Discrimination. To get one, just ask your attorney to send you a boilerplate policy or call your local EEOC (Equal Employment Opportunity Commission) office. Post the policy on the wall (it’s the law) in your break room and place the language in your employee policy or manual.

At-Will Employment Statement. Get one from your attorney. Add the statement to your written employment policy. Of course, remove any language from your policy that might be construed as limiting your rights to terminate.

Non-Solicitation and Confidentiality Statements. Get the language from your attorney. Place the language in your employment policy and also state that each employee will be required to sign non-solicitation and confidentiality agreements prior to employment. Develop standard agreements and enforce them as a condition of employment.

Focus on and Document the Business Purpose: The best defense against claims of discrimination is for every hire and fire decision to have a business purpose. Document the purpose and any claimants will have to prove that your real purpose was in fact discrimination.

Have All Job Applicants Sign a Written Application: Include on the job applications form a notice that only written representations and promises of the employer will be enforceable. Include a detailed job description in the application; one that lists the tasks an employee will have to perform satisfactorily to qualify for and maintain the position.

Have Written Job Descriptions: List the tasks an employee will have to perform satisfactorily to qualify for and maintain the position. 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.

Quarterly Inform All Employees of the Following: Warn supervisors and managers not to give oral assurances of job security to applicants or employees.

Hold and Document Periodic Employee Reviews: They should be candid, concise and clear. Ambiguous, flattering comments should be avoided. Problems should be identified and remedial actions and timetables specified. Of course, they should be in writing and the employee should be required to read and sign them, and add comments if they wish. This step establishes a clear record that will be hard to deny or dispute if the appraisal is questioned in the future. Finally, if an unsatisfactory employee appraisal is inconsistent with earlier evaluations, management should investigate the matter and include a written report of the review in the employee’s personnel file.

Develop and Put in Place Uniform and Progressive Disciplinary Standards: Your attorney can help you develop a basic plan. This will help you avoid charges of discriminatory treatment.

Hire Based on Skill, Ability and Experience: The best defense against claims of discrimination is to not discriminate. Hire based on the skill, ability and experience of the applicant. Advertise the qualifications needed for the job. Interview and rate, in writing, the degree to which each applicant meets the criteria. Hire a candidate who ranks at or near the top.

Have Your New Hires Sign a Confidentiality Agreement: Your attorney can help you draft one.

Have Your New Hires Sign a Non-Solicitation Agreement: Your attorney can help you draft one.

Document Employee Misconduct or Underperformance: Record all significant employee problems so that subsequent discipline or discharge actions are documented and can be justified.

Maintain Employee Complaint Procedures: 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.

Mike Lissau, an employment law expert with Hall Estill, and William O’Connor, an attorney with Norman Wohlgemuth, each provided his expertise for this article.