Don’t terminate without running through this list of hidden problems, says attorney Edward M. Richters. You don’t want to be on the witness stand going “Humina, humina, humina” defending your decision to terminate.
Richters comments came at a workplace law symposium sponsored by national employment law firm Jackson Lewis and the Connecticut Business and Industry Association. Richters is a partner in Jackson Lewis’s Hartford, CT office.
Go here for more of Richters’s tips in yesterday’s Advisor.)
Check for Hidden Problems
Every termination must be preceded by a thorough search for potential problems, warns Richters. For example, check to see if there are any:
- Potential discrimination claims. Is the person a member of a protected class? Most employees are, Richters notes.
- Potential harassment claims.
- Potential retaliation claims. For example, has the person
- Filed a grievance?
- Complained to an agency?
- Filed a discrimination or EEO complaint?
- Complained about workplace safety issue?
- Made a complaint under Sarbanes-Oxley?
- Potential FMLA problems. If attendance has been atrocious, did you ask why they’ve missed?
- Potential ADA problems. If the person can’t do the job anymore, did you have the interactive discussion?
As part of your pre-termination evaluation, ensure that employee has been given fair warning and opportunity to improve. Juries expect this. In addition, you must be able to:
- present a valid basis for your finding of misconduct.
- show that you conducted an appropriate investigation.
- demonstrate that you gave the employee an opportunity to explain or respond.
If you do realize that one of these potential problem situations exists, take a few steps back, says Richters. As was mentioned in yesterday’s Advisor, delaying is often a good thing.
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Check It Out
It doesn’t hurt you find out what really happened. Ask the employee, “Three witnesses confirm that you did it, what’s your side of the story?” When the employee responds, you usually get one of three reactions, Richters says:
- I did it.
- I did it, but with a twist—I had a good reason. At least, says Richters, now you know what the plot is.
- I didn’t do it and I have witnesses who will vouch for me. Now you have something to check out.
Humina, Humina, Humina
And you do have to check out the story, says Richters. Otherwise, you’ll be on the witness stand trying to explain why you didn’t follow up with those witnesses. “You just assumed that this person was guilty,” says the employee’s attorney. “Was it the fact that he is Hispanic?” “You don’t want to be on the witness stand, going ‘humina, humina, humina’ trying to explain why you didn’t follow up those leads,” says Richters.
Terminations: They’re always a challenge for any HR manager. Of course, terminations are just one of what, a couple of dozen recurring HR challenges? What about new COBRA rules, FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?
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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
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