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Nearly 90 percent of discrimination charges are discharge-related. The reasons are obvious: Terminations cause hard feelings, create economic need, and destroy feelings of loyalty, says today’s expert. What can HR do?
Expert James W. Bucking, partner and chair of the Labor & Employment Law Department at Foley Hoag LLP, blogging on HR FactFinder, offers 10 tips for handling terminations and avoiding lawsuits. Here are some of his tips.
1. Know the facts. As an employer, you have broad authority to compel employees to talk to you. Take advantage of this right, says Bucking. Talk to supervisors, coworkers, and subordinates, and make a record of what they tell you.
Also, speak with the employee involved because it’s a lot better to know his or her story at the time of termination than to hear it first at a deposition.
2. Review ALL the documents. Be especially wary of “stellar” performance reviews, says Bucking. Also review the disciplinary records of other employees in the same job or area. “There may be perfectly good reasons for treating employees who seem similarly situated differently, and you need to consider these differences in advance,” he says.
Also, look everywhere that documents concerning the employee may exist, including the files, electronic records, and e-mails of the supervisor and everyone else involved.
3. Create new documents. “Sometimes the problem with a termination is that there are few documents supporting your decision. “There is nothing wrong with creating such documents—in fact, it is a good idea,” Bucking writes. But never make things up or backdate the documents you create.
4. Beware the electronic scourge. Many people and documents are typically involved in discharge decisions, and today’s technology preserves every bit of the “untidy, behind-the-scenes process.” Litigation discovery can reveal it for the world to see.
Have an attorney involved at all stages, Bucking advises, as this brings things under attorney/client privilege. If an attorney is not involved, avoid creating a permanent electronic record.
5. Don’t lie. “The worst thing to do when terminating an employee is to be dishonest as to why. Yet this is a common mistake,” Bucking says. Like most people, employers hate confrontation and hard truths, so firing for poor performance is often disguised as a layoff.
“But most discrimination allegations turn not on direct evidence (like racial slurs), but on ‘pretext,’” he says. “An employer gives a false reason for termination, creating the inference that the real reason was unlawful.”
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6. Don’t be cruel. To you, a termination may be just business, but there’s no way to avoid an employee taking it personally. That’s likely to lead to a lawsuit, where “cold-heartedness does not play well before a judge, and especially a jury,” Bucking says.
7. Conduct the termination respectfully. Don’t fire in public. Instead, be as private, respectful, and decent as possible.
8. Have backup. Two people should be present at the termination, says Bucking, and both should take detailed notes. Record anything material that the employee says, and also what you say, especially on the reason for your action. Be sure that what you tell the employee agrees with your previous oral and written statements.
9. Pay all compensation. Make sure that all monies due to the employee are paid immediately. In many states, including California, all compensation owed must be paid on the day of discharge.
10. Don’t forget about noncompete, nondisclosure, severance, and other agreements. Make sure you live up to any obligations to departing employees, and make sure they understand any obligations they owe you.
Bucking also suggests considering new agreements, such as a release from legal action based on the termination. “It may be a great investment to pay a few weeks of severance for absolution from litigation,” he says.
Terminations: A Complete Guide for California Employers
Whether it’s a termination (for violent behavior or other reasons), constructive discharge, layoff, or forced resignation, ending an employment relationship is a legal minefield that you should navigate only after careful consideration and adequate preparation.
Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can significantly impact how you must treat employees before letting them go.
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How do you avoid creating a permanent electronic record? And can't you get into legal trouble if you delete such records if you suspect the employee might sue?