Forman, a partner at the Los Angeles office of Carothers, DiSante & Freudenberger, offered his tips at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas.

When managers want to terminate, it’s helpful to have a system in place with checklists that will slow things down, says Forman. Consider:

1. Remind the manager about personal liability in many cases.
2. Mention litigation risk factors. If any of the situations below are applicable, be prepared to prove and document the reasons for your termination decision, says Forman.

• Over 40
• Minority
• Born in a different country
• Female
• Has a disability
• Has requested religious accommodation
• FMLA leave
• Harassment
• Discrimination
• Whistleblower
• Participated in an investigation
• Sex or gender identification
• Workers’ compensation benefits

1. Review the employee’s file to see if documentation supports the decision
2. Review other discipline/discharge decisions for consistency
3. Discuss the time required of the manager and the costs if there is a charge—depositions, trial, cost, loss of productivity, etc.

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How to Do Investigation Interviewing

First, says Forman, interview the complaining employee.

• Get all details such as dates, notes, writings, emails, witnesses, and people the complaining employee told about the situation.
• Get the complaining employee’s desired resolution; frequently, says Forman, it’s just to get the behavior to stop.
• Write the complaint up and get the complaining employee to confirm in writing.

Then, interview the alleged perpetrator. Again, get all details, such as dates, notes, writings, emails, witnesses, etc.

Then write up the case and discuss it with your attorney. After the discussion, interview third parties—witnesses, clients, vendors.

Also take other reasonable steps, for example:

• Have IT get emails sent by the people involved.
• Inspect locations where incidents occurred.
• Especially if no witnesses are identified, it may be appropriate to seek out witnesses.

Coming to a Resolution

Analyze the information you have gathered. Make credibility assessments. What are the motives of the complaining employee and the accused employee?

Write a post-investigation memorandum. Be sure to document hours spent, the number of witnesses, all in a generic manner, so that if you are ever accused of not investigating or doing a poor investigation, the documents will refute those allegations.

What Is the Best Tool for Avoiding Termination Problems?

The best tool for employers who want to avoid termination problems is doing HR basics right. For example:

• Make good hiring decisions
• Have a handbook
• Draft good policies
• Have an alternate dispute resolution system

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