You might think the law’s behind you when you discipline workers, but human factors can change the equation.
Employment-at will is a bedrock concept of American business, allowing employers, with few exceptions, to fire anyone, at any time, for any legal reason. No documentation is legally required.
But take that concept too literally and you could be looking at trouble, says Jonathan Segal, Esq., a partner with the law firm of Duane Morris, LLP. Because if the case goes to court, judges and juries create a human factor that can modify the cold realities of what is and is not in a law book.
“One factor not written into any law is fairness,” Segal says. “Documentation implies fairness.” Why is this important?
“Judges, juries, and investigators always look at fairness,” he continues. “If your process is perceived as fair, you will go into any adversarial proceedings with an advantage.” To deal best with the human factor in discipline and termination, both with the employee involved and with the legal system, Segal makes these suggestions:
- Use Progressive Discipline. Segal advises his clients to handle problem employees through a process, instead of just—as they are legally entitled to do— simply sacking them. “I would prefer,” he tells clients, “not to end up married to this employee in lengthy litigation. Maybe if we do this termination in two or three steps, we can have a clean break.”
- Use the Same Person Who Hired to Fire. This step, says Segal, prevents charges of bias in firing. Though it carries the legal term “same actor inference,” the reasoning is simple: If the manager showed no bias in hiring the employee, it’s unlikely that the same manager suddenly developed a bias that caused the firing.
- Drop Problem Workers in the First 90 Days. Waiting, says Segal, just builds the worker’s “sense of entitlement” about “owning the job.” He advises HR managers to ask line colleagues for an evaluation of new hires 10 days before the traditional 3-month probationary period ends, and to take action quickly if needed. He also says handbooks should note that a worker completing 90 days does not change your employment-at-will rights in any way.
- When You Document, Cite Specifics. Segal cautions against using generalized words like “bad attitude.” Instead, he says, write out the actual acts that merited the description.
- Avoid Absolutes. “Never say ‘never’ or ‘always’ with employees,” Segal declares. If, for instance, you say “Don always misses deadlines” in documentation or testimony, the employee’s lawyer need only show one instance in which Don made a deadline for your whole testimony to become suspect.
- But Have Absolute Reasons for Termination, including violence or theft. And don’t write in your policies that such acts may be subject to penalties up to and including termination. “That suggests that, sometimes, you find these acts acceptable,” Segal says.
- Don’t List All the Little Things an employee has done wrong, Segal advises. “It makes you look petty. Instead, put three or four examples to show a pattern of problem behavior.”
And finally, says Segal, don’t describe a problem worker in medical terms. Saying that “Sally is depressed” or “our EAP helps people with depression” can be seen as the employee being “perceived as disabled.” Just one such utterance can invoke all the job protections of the state and federal disability-bias laws.
“Train managers to focus on the performance or behavior deficiency,” Segal tells HR professionals, “and to not speculate on the underlying cause.”
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