Re: Termination

From: Cara Levinson
Email: CaraBLevinson@aol.com
Date: February 07, 2005

Comments

This topic deserves an entire week itself. I will address other aspects of termination later in the week. Here's a nutshell version of a pre-termination consideration checklist. I will also search for other resources and will get back to you before the end of the week, okay?

CHECKLIST Remember: Avoid litigation through proper planning and execution. The time to defend against the termination lawsuit begins before you hire.

A. BEFORE HIRING

1. Be sure that advertisements and help-wanted ads are not discriminatory.

2. Avoid asking discriminatory questions during job recruiting and selection.

3. Avoid making guarantees about anything, including but not limited to earnings, promotions, etc.

4. Review employment applications, employee manuals and work rules to ensure legal compliance, since all these documents will become evidence in the event of a termination lawsuit. Applications and manuals should always include an "employment at will" statement that is clearly stated in boldface type.

5. Oversee statements that recruiters, interviewers and other intake personnel make to new or prospective employees. Train those involved in the hiring process on "dos" and "don'ts".

6. Discuss all employment terms in advance, including the employment-at-will status, if that is applicable.

7. Reiterate the employee's at-will status in your letter confirming hire if you use such letters.

B. WHILE WORKING

1. Carefully prepare periodic performance appraisals; never inflate them.

2. If you take corrective action, be sure you are disciplining or terminating the worst offenders first, not on the basis of any other reason, to avoid charges of discrimination. In other words, be consistent and fair in how you treat all employees.

3. Respond promptly and properly to charges of harassment or discrimination.

4. Carefully review all termination decisions before making them considering such points as:

a. Are there any potential statutory problems such as race, sex, age, or pregnancy discrimination, or violations of whistle blowing laws or exceptions to the employment-at-will doctrine?

b. Have any representations been made to the employee concerning job security? If so, was the termination consistent with those representations?

c. If you have an employment contract with the employee, what does the employment contract say about firings? Were all provisions (i.e., notice of X days sent certified mail) followed?

d. Are there any public policy concerns? For example, has the employee recently exercised a legal right (i.e., attended jury duty) that your company complained about? Or, had the employee been involved in any controversial events that may include misconduct on the company's behalf (i.e., wrongful surveillance or eavesdropping or other violations of employee rights of privacy)?

e. Has the employee received notice of the potential for termination and an opportunity to improve before the discharge? Obviously, there are certain types of misconduct -- e.g., theft -- where such notice is unnecessary.

f. Are there any mitigating factors that may excuse or explain the employee's poor performance or misconduct?

g. What kind of overall record does the employee have? Remember that the longer and better the employee's record, the more reluctant the reviewer should be to approve the termination.

h. Consider whether termination is appropriate under all of the circumstances. Does the punishment fit the crime?

C. BEFORE AND AFTER THE FIRING

1. Be compassionate, yet firm.

2. Offer non-monetary benefits if appropriate.

3. Recover all company property, hopefully before the terminated employee parts.

4. Consider offering a General Release and Waiver when appropriate. If so, have an attorney experienced in employment law prepare it.

5. Avoid accusations in front of third parties to avoid charges of defamation.

6. Take a conservative approach with potential employers. Remember, bad references lead to expensive lawsuits!

7. Contest unemployment claims where appropriate.