Terminations are breeding grounds for expensive lawsuits. Yesterday’s Advisor presented the first 7 of 10 questions you should ask before terminating employees. Today we’ll cover questions 8 through 10, plus look at a handy terminations checklist from HR.BLR.com®.
8. Do you have a well-documented business reason for the termination?
Generally, if you can produce a well-documented business reason for your termination—for example, poor performance—you are more likely to avoid—or win—any lawsuit.
9. Do you have supporting documentation?
Imagine yourself on the witness stand explaining that a termination was due to poor performance. Then the defense attorney produces a string of performance appraisals—signed by you—that say “satisfactory” or “good.” Case closed. No matter what you say now, you’re a liar. You were lying then or you are lying now.
Sometimes it doesn’t even take a formal document to show acceptable performance. Just the fact that you treated the employee like other good-performing employees—i.e., gave raises and bonuses–is enough to convince a jury that you are fabricating the poor performance reasoning.
10. Have you been fair?
As many organizations have found out to their dismay, being technically correct in a legal sense is often not enough. Juries often react more on the basis of fairness than of law. And, by the way, so do the rest of your employees. Therefore, it is necessary to evaluate both the actual legal requirements and the softer issue of fairness before terminating an employee.
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Terminations Checklist
Here’s another take on pretermination lawsuit prevention—a checklist from HR.BLR.com that recommends answering these questions before firing an employee:
- Have the violations been thoroughly documented and investigated?
- Are there objective facts to support the discharge?
- Has the employee been told that discharge would be the next step in the disciplinary process?
- Is the violation so serious that it requires immediate discharge?
- Do employee handbooks clearly state that an employee can be discharged for this violation?
- Does the employee know the appropriate rule and penalties?
- Has there been a serious, documented effort to help the employee correct the behavior or performance?
- Have other employees been discharged for the same violation?
- Are there any mitigating circumstances in the employee’s history or situation?
- Has the employee received a fair, open-minded hearing of his or her side of the story?
- Has this employee been allowed to get away with this behavior in the past?
- Have other employees been allowed to get away with this behavior in the past?
- Has the employee exercised legal rights for which this could be considered retaliation?
- Has the employee been treated fairly, without bias or discrimination?
- Would an objective outsider agree that there is documented cause for discharge?
If you answer “no” to any of the questions above, review the situation carefully before making a termination decision.
OK, you say, HR.BLR.com can help me with my terminations. Now, how about my EEO-1 reports, benefits, intermittent leave, training, and accommodation requests?
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