His resume looked great and his interview was terrific. As soon as he left the room, you made the decision to hire him immediately.
His resume looked great and his interview was terrific. As soon as he left the room, you made the decision to hire him immediately.
Fast-forward seven months. Your employee is simply not pulling his weight on the job and you need to fire him. You sit down with your Human Resources manager to review his file, which you expect to contain various written warnings about job performance and perhaps a negative review. But his file is empty. Do you go ahead and fire him anyway? Or, do you keep him on the payroll for a while longer until you can document his shortcomings?
In the modern workplace, it is not at all difficult for an enterprising employee with an axe to grind against his or her employer to locate a state or federal law that will provide some basis for him or her to file a lawsuit. Even the most conscientious employers may end up facing lawsuits as a result of the discipline or termination their employees. This article focuses on offering practical tips for employers to help them navigate the stormy seas of employee discipline and discharge.
TIP ONE: PRESERVE THE EMPLOYEE’S EMPLOYMENT-AT-WILL STATUS
In Georgia, an employee’s employment with an organization is terminable at-will by either party so long as the termination is not done for an unlawful reason. Maintaining an employee’s at-will status, as well as being able to show objectivity and consistency through policies and actions, will provide a strong defense to many claims.
To preserve the at-will status of your employees, you should include an employment-at-will statement in your employment application, any written employment offer, contract, employee handbook or personnel policies and procedures. Avoid referring to the initial period of employment as a “probationary” period or referring to employees as “permanent” employees. In addition, do not create mandatory, inflexible disciplinary standards or procedures which may limit the employer’s discretion to discipline or discharge an employee in an appropriate situation. Always leave room for the employer to take appropriate action in disciplinary situations which may not be anticipated in written policies.
TIP TWO: BE OBJECTIVE
Define job responsibilities and objectives. Be descriptive in stating the tasks the employee will be required to perform, e.g., typing, filing, lifting, etc. If written job descriptions are created, carefully define the “essential functions” of the job and ensure that the descriptions are updated. Establish a written disciplinary policy which clearly notifies employees of conduct which is unacceptable and which may result in discipline or discharge, but which does not obligate the employer to follow inflexible “progressive discipline” steps before taking any particular employment action.
TIP THREE: INVESTIGATE THOROUGHLY
Before deciding to terminate or otherwise discipline an employee, make sure to conduct a thorough investigation. Allow the employee an opportunity to explain his or her side of the story. Confirm that the documentation in the employee’s file supports the disciplinary action contemplated. That documentation should show that there was a clear violation of the company rules, substandard job performance or other such grounds, and that the reason for the termination or other disciplinary action was the employee’s violation of such rules or substandard performance. Conducting a thorough investigation, regardless of the outcome, is always beneficial to an employer. Far better for you to learn any potentially harmful information at a preliminary stage of investigation than to learn about it for the first time after a suit has been filed against you.
TIP FOUR: DOCUMENTATION IS IMPORTANT
All written reviews should be candid and accurate and should note any problem areas, without containing unrealistically positive appraisals intended to help the morale of the employee. One would think that this would go without saying. However, it is extremely common for employers to give average or even above-average reviews to employees for reasons unrelated to their job performance (e.g., “But she’s worked here for fifty years.”) All significant performance deficiencies or conduct problems should be documented promptly.
TIP FIVE: BE CONSISTENT
Where appropriate, use progressive discipline in responding to employees’ performance or conduct deficiencies. All similar performance or conduct deficiencies should be addressed in a consistent manner. If you feel that extenuating circumstances justify different treatment of employees for conduct which appears similar, describe those circumstances in writing at the time that the issue is addressed. Be aware that different treatment of employees for similar conduct is one of the primary bases for any discrimination claim or lawsuit.
TIP SIX: TERMINATE WITH CARE
Ideally, the person who initially hired the employee should be the same person who actually fires the employee. Termination decisions should also always be reviewed by another manager or Human Resources representative to ensure that it is not arbitrary or insufficiently documented. At the termination, state the reason for the termination and allow the employee to respond, but make it clear that the decision has been made and that the conference is not the opportunity for a debate. Be straightforward and honest, but do not be hostile or accusatory. Treat the employee with respect.
TIP SEVEN: CONSIDER GETTING A RELEASE
If you are giving the employee something at termination that is above and beyond what you would normally give a terminated employee, you should get a release from the employee in conjunction with the termination. Frequently, employers will provide valuable services to employees, such as out-placement services or continued payment of the employer-portion of health care premiums for some set period of time. If you are doing more than you are obligated to do pursuant to your policies, you should ask the employee to sign a release wherein they agree not to sue you. Since the waiver of certain types of claims, such as claims arising under the Age Discrimination of Employment Act, requires that very specific language be included in a release, you should consult with an attorney for each termination and avoid using a generic “form” release.
Although there is no “fail safe” way for employers to avoid being sued, following the preventative measures outlined in this article will serve as a framework for employers seeking to build a strong foundation capable of withstanding lawsuits relating to discipline and discharge.