GUIDELINES FOR FIRING EMPLOYEES
by Don Phin
When employers ask if they can terminate employees, they’re really asking, “If I fire them, can they sue me?”
Before you fire an employee, I’d recommend taking these steps:
- Be aware that you might easily face litigation. For a filing fee of about $150, anybody can sue you!
- Ask if the firing will surprise the employee. The answer says a lot about your performance management. If the employee has been performing poorly, to what degree have they addressed this challenge? Have you provided disciplinary notices or performance plans?
- Check to see if the employee falls into any protected categories. Although employment is “at-will,” the exceptions have, in a sense, swallowed the rule. If an employee fits within a protected category (such as race, religion, age, gender, etc.), they might claim that the real motivation behind their termination has nothing to do with performance. Bear in mind that courts will usually uphold “mixed motivation” cases in which a poorly performing employee faced discrimination. In other words, the employer treated them differently than other employees who have performed poorly. Determine whether discrimination played any role in the termination decision. Give the employee a way to complain if they feel that discrimination played any part in their poor performance reviews or termination decision.
- Review employee complaints. Employees who complain about health or safety issues and other concerns regulated by state or federal laws often file whistleblower and retaliation cases. If these people have also complained about discrimination or harassment, you might well face a claim of retaliation. As a loose rule of thumb, most attorneys and judges will consider any adverse action taken within three months of a complaint as “retaliatory” which means you’ll have to prove that it wasn’t. Good luck!
- Make sure your documentation is in place. Do you have performance evaluations which show the deficiency for which you’re firing the employee? What about their disciplinary notices or performance plans? What benchmarks apply to determining the employee’s performance? Did they sign an employee handbook acknowledgement identifying the impropriety of the conduct at issue? Although it’s always easy to say that you’re firing someone for poor performance, every employer faces this challenge: If you’re going to claim that the poor performance was going on for a while and you didn’t already fire the employee, they might allege that the situation couldn’t have been that bad which means that something unique was involved such as discrimination or retaliation. That’s just one trap employers face when they don’t discipline and document in a timely fashion.
- Be careful in terminating “damaged goods” employees. An employer might be concerned that the employee is sick, in failing health, or addicted to drugs or alcohol. They could have also been injured in a Work Comp claim. In a sense, they’re “damaged goods.” If this is the case, be aware of your obligations under the ADA (15 employees or more) and FMLA statutes (50 or more employees). The advice is always the same: Don’t play lawyer, doctor, or psychologist -- unless you are one. Treat the employee as you would a loved one. Focus on their performance and what reasonable accommodations, including leave, might help them to meet legitimate performance standards. Do this regardless of whether the employee is sick, inured, disabled, or otherwise limited in their ability to perform.
- Don’t forget the possibility of human error. We all make mistakes. In one case, a CEO asked if he should fire one of his warehousemen for throwing a cigarette into a tire pile, which then ignited and burned down the warehouse. If you face a similar situation, consider signing a “do one more stupid thing and you’re out of here” agreement with the offending employee.
- As a last-ditch effort to defuse a possible claim, consider doing an exit interview.
Following these guidelines should go far to reduce your exposure to employee lawsuits.