7 attorney tips for making firings easier to defend
Few things do a better job paving the way for an employee lawsuit than an acrimonious termination.
Whether there’s a case to be made against an organization or not, too many employees simply try to seek revenge on their former employers by dragging them into court — claiming they were fired for this, that or some other illegal reason.
So what’s employers’ best defense against these types of lawsuits?
Employment law attorney Tevis Marshall of the law firm Ogletree Deakins recently shared his answers to that question on his firm’s blog.
His best advice for terminations stemming from misconduct or poor performance:
- Investigate. Prior to making the decision to terminate, do your homework and document what you find. Talk to the employee’s supervisors and review performance evaluations, timecards, and absentee records. Then, ask yourself if the person would benefit from special training. If that answer’s “yes.” That’s likely the safest avenue to explore before cutting the employee loose.
- Get his or her side of the story. Interview the employee to get his or her take on what’s causing the problem. Not only can this reveal info you may want to explore further, it also increases the perception you’ve given the employee a fair shake.
- Stick to the facts. When it comes to documentation, keep opinions or blanket statements — i.e., “There’ no doubt Barry harassed Susan” — out of the record. Stick to the facts, and let them speak for themselves.
- Make sure you’re consistent. If you failed to terminate an employee for a similar offense in the past, it’s probably wise not to terminate now. Treating one employee differently from another looks like bias.
If all after following the four steps above, all signs still point to terminating the employee, there are still at least three questions you need to answer before you drop the hammer, says Marshall.
They are:
- Is the employee under contract, and would this termination violate any aspects of that contract?
- Is the employee involved in union activity or covered under a collective bargaining agreement? Terminating an employee who’s involved in union activity opens up a whole other can of worms.
- Does the employee have a medical condition, or has he or she recently returned from medical leave? If a termination remotely smells like retaliation or discrimination (whether it is or not), you can bet a lawsuit’s coming. The same can be said if you failed to at least seek a reasonable accommodation if the person has an Americans with Disabilities Act-covered disability or denied the employee any rights under the Family Medical Leave Act.
One thing to keep in mind: While these steps won’t be able to totally prevent an employee from challenging his or her termination in court, they can reduce the chances of that happening. They’ll also make your decision to terminate much easier to defend in court should a challenge arise.
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