PHR | SPHR Online HRCI Certification Exam Prep Class begins February 19, 2019 Advertising Home Book Cynthia Back Issues Contact Subscriptions TNSHRM About Cynthia 0 Search SHRMGA ARSHRM ALSHRM Post a Job Like GetSocial Best Practices for Terminating Problem Employees By Robin B. Taylor A. Introduction The best defense is a good offense, right? Right. Implementing the right procedures to cut down on frivolous employment discrimination lawsuits starts long before the termination date. The mistakes most often made by employers in the termination process are made early in employment. Routinely, employers fail to document performance issues during employment and fail to act decisively when problems with employees arise early on. Further, employers also err when providing the employee with a reason for the termination that later proves to be false. It is critical that management and Human Resources professionals within a company have a solid understanding of the proper ways to document substandard performance, notify an employee of their termination, and the legitimate reasons for doing so. B. Manage the Problem Employee From the Start Much of the litigation today’s employer faces involves the proverbial “problem” or “marginal” employee. So-called marginal employees show their more difficult sides early in their employment. The sooner these traits are identified and the employee is dismissed, the better for all concerned. The first line of defense is to establish a “probationary” or “initial evaluation” period of 30 to 90 days and apply it ruthlessly. C. Honesty is the Best Policy: Documentation The second line of defense against the marginal performance is accurate and dependable documentation. The point of the exercise is to make an honest record of employee performance made close in time to the events. Rapidly creating a five-inch pile of paper in a rush to rid yourself of a bad apple does not help. All too often managers are unduly reluctant to confront inadequate or marginal performance. By far the biggest mistake managers make is to inflate performance reviews. The path of least resistance is avoidance, and to minimize hard feelings in the office, many managers give “meets expectations” scores to under-achievers. With no other disciplinary documentation on file to break the chain of positive performance reviews, you might not be able to demonstrate cause in a wrongful termination suit. Honesty is the best policy. Personnel files can be of enormous value in defending against employee claims. It is, therefore, important that personnel files accurately reflect employee performance. They can be a sword as well as a shield. Supervisors should address employee performance on a daily basis, as needed. D. Investigation of Misconduct Discharge decisions, which typically are difficult to defend, involve one or more of the following avoidable problems. First, the decision was made on the spot either as a knee jerk reaction to an incident or the manifestation of an unbridled ego. Second, the decision was made with no meaningful investigation into the surrounding facts or management’s reaction to the same or analogous problems in the past. Third, no effort was made to record or otherwise document what was said, by whom it was said, and whether anyone else was present. In sum: INVESTIGATE, DOCUMENT, and DISCIPLINE appropriately. Do not rush to act. Make the decision after a meaningful investigation and consideration of how other employees were treated in similar circumstances. Getting the employee’s “side of the story” at the time of the incident, rather than after he or she has been coached by a lawyer, nearly always pays off at a later point. Rarely, if ever, will an employee admit misconduct likely to lead to termination. Where, however, you can demonstrate a good faith investigation, leading to a reasonable belief concerning culpability, disciplinary action can be taken. E. Making the Termination Decision Before making the termination decision, all of the employee’s supervisors and managers should convene to assess whether all agree termination is the proper course of action. The best practice would be to consult the company’s legal counsel before any decision is made. The decision makers also must confirm there is credible documentary and testimonial evidence to support the termination decision (i.e., performance or disciplinary warnings and supervisors or other employees willing to testify to the employee’s shortcomings). The next inquiry is an analysis of whether the termination is consistent with how other employees at the company have been treated under similar circumstances. If other employees who have made similar mistakes have not been terminated, the employer should revisit other disciplinary options to avoid allegations by this employee of discrimination. The next assessment is whether there are provisions in company policies that might protect the employee from being terminated. If there is a progressive discipline policy in place, it must be reviewed and complied with and any deviation from a progressive discipline policy should be justified. The employer also must assess whether the termination could violate any local ordinance, state or federal statute prohibiting discharge under such circumstances (i.e., if the employee is absent due to required military duty). Further, consider the timing of the termination (i.e., whether criticism of the employee’s conduct or performance started only after the employee made a protected complaint, such as a complaint about harassment or discriminatory, unfair, unsafe, or other unlawful conditions at work). If this is the case, there must be extensive documentation to support the reason for the proximity in time, and these situations require the consulting of an attorney before any action is taken. If the employee is physically or mentally disabled, Human Resources must ensure that documented attempts were made to reasonably accommodate his or her disability (including accommodations for conduct or performance related to the disability). A similar analysis must be conducted if the employee is pregnant. To minimize the risk of litigation, employers should take extra steps before effecting a termination when one or more risk factors identified below apply. These include situations in which the employee: ◾ Is in one or more protected groups; ◾ Has a history of initiating employment related claims or lawsuits; ◾ Has recently complained about an unfair, unsafe, or unlawful activity; ◾ Has recently engaged in a protected statutory activity (e.g., exercising leave rights under disability, family and medical leave, or workers’ compensation statutes); ◾ Has filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) or other state or local fair employment practices agency; ◾ Has recently complained about wages allegedly owed (including commission or bonus calculations); ◾ Has a long-term employment history with the company; or ◾ Is under a supervisor who has a history of similar problems with other employees. Such steps could include delaying the termination to allow for additional warnings, counseling, and opportunity for improvement; having a second supervisor participate in the evaluation of the employee; or offering the terminated employee a severance package in exchange for a release of all claims. F. Notifying an Employee No law requires an employer to provide a termination letter identifying the reason(s) for the termination. Well-written termination letters can be an important deterrent to wrongful termination claims. If done correctly, they can provide persuasive, contemporaneous support for the termination and reduce the risk of litigation. However, if the letter provides the employee with a reason for the termination that later proves to be false, the termination letter can effectively gut the employer’s defense should litigation ensue. It is important to note that reasons that are too specific (e.g., “the employee failed to meet production quota of 18 widgets per hour three days in a row”) may create an insurmountable proof standard for the employer in litigation. The description should give the employer a realistic chance of proving the basis for termination and provide the employee adequate notice of the reasons for termination (e.g., “the employee failed to meet production standards”). A substantial number of lawsuits filed by former employees arise because of how the termination took place, not why it took place. The termination meeting should be scheduled as soon as possible after the termination decision has been made so that the issues remain fresh in the memories of all parties. Someone other than the employee’s immediate supervisor should conduct the termination meeting, such as the human resource manager or the employee’s department manager. It is also a good practice to have another management employee attend the termination meeting to serve as a witness but not otherwise actively participate. The person conducting the termination meeting should briefly state the performance, conduct, or other issues that precipitated the meeting. The employee should be informed that the company has determined the employee is to be terminated. Remember that reasons given to the employee that later are proved false or only partially correct will substantially undermine the employer’s defense in litigation. All interaction with the employee should be respectful and matter of fact. If the employee becomes argumentative or threatening, the meeting should be terminated. Unless there is a fear of theft or destruction of company property, the employee should be allowed to privately gather personal items and leave the premises. Employers who require the terminated employee be “escorted” from the building or closely “monitored” while cleaning out his or her desk could increase their risk of a lawsuit.
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