Use an Employee Termination Checklist to Avoid Legal Trouble

Using an employee termination checklist can reduce the risk of overlooking information that could lead to discrimination claims or unlawful termination claims in the future. Before making a final decision, first consider three issues:

1. Contract law. “You must comply with promises about reasons and processes.” Marc Jacuzzi noted in a recent BLR webinar. In other words, if you outline reasons and processes for termination in your handbook, follow them.
2. Discrimination law. “You cannot consider, in the decision-making process, any considerations of the EEO categories.” Jacuzzi advised. This includes membership in any of the protected classes, the action of taking protected leave, or taking any other protected action. This becomes an issue of timing as well. If you discovered something that requires discipline while someone is on leave, for example, be careful of timing and the notification. Don’t subject the company to risk of discrimination claims or retaliation claims.
3. Public policy. “You cannot consider, in the decision-making process, the employee’s exercise of their legal right.” Jacuzzi reminded us. This might include things like whistle-blowing, wage claims, OSHA claims, workers’ compensation claims, etc.

What to Include in an Employee Termination Checklist

The three issues noted above are a baseline. Once you’ve gotten past those, however, that does not mean that a termination decision does not require further scrutiny. Here’s an employee termination checklist to use to confirm that you’ve crossed your “t’s” and dotted your “i’s” before proceeding:

• Has the employee been given chance to tell his or her side of the story?
• Has the employee recently made a claim or complaint (e.g., OSHA complaint, workers’ compensation claim, etc.)?
• What is the employee’s age, sex and protected group status?
• How long has the employee been with the company?
• How will the reasons for termination be specified in any writings?
• Has the employee recently taken a protected leave?
• Have any company disciplinary procedures been followed?
• What documentation exists as to warnings?
• What documentation exists regarding poor performance?
• Was the employee warned of potential termination?
• Can the company point to specific examples?
• Have other employees who had similar problems been terminated? At what point?
• How strong is the evidence if you need to justify your decision to a court?
• Have you reviewed the entire personnel file?
• Are both the supporting documentation and decision to terminate timely?
• Have less drastic means been considered, such as suspension?
• Playing devil’s advocate, what would the employee say in order to defend himself/herself?
• Is the reason for termination lawful?
• What are the employee’s future job prospects if terminated?
• What are the employee’s financial circumstances?
• Is it in the business’ interest to consider a separation package in exchange for a release?
• Are you prepared to give the employee a letter setting forth the reasons for termination?
• Should you consult with legal counsel?

These questions will allow you to pause for reflection to ensure you’ve looked at the big picture; they will also help to ensure you are consistent with how you treat employees.

For more information on what to include in an employee termination checklist, order the webinar recording of “Management and Discipline: How to Manage Well and Fire Without Fear.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.