What’s one of the hardest wrongful termination lawsuits to defend? The one where the “story” of the termination is inconsistent between HR, the manager, and the documentation.
Here’s an example:
The employee’s performance is poor enough that he or she has to be fired. But the supervisor won’t tell the person that that’s why he’s being fired.
Why? The supervisor never once told the person that his performance was poor. So the supervisor blames “the budget” or “headcount,” or says that “they’re making me cut back.”
So far, so good. The supervisor isn’t in trouble for never informing the employee of his poor performance, and the employee thinks he’s being fired for a reason out of his control.
But what happens? The supervisor hires a replacement. Now the ex-employee thinks: They’ve lied to me. It wasn’t the budget. It must be because I am a member of a protected class. (And no – the person is never going to think that it has to do with his or her poor performance.).
Is it any surprise that the lawsuit is filed?
And now you’ve got the following:
- What the employee was told = budget
- What the employer now claims = poor performance
- Performance appraisal = “satisfactory”
- Recent raise and bonus
- Various other emails and documentation
When the stories don’t agree, the jury knows only one thing for sure: Your company lies. And that leaves them with only one conclusion that makes sense: Discrimination.
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The ‘Let’s Get Our Stories Straight’ E-mail
So, before you fire, you decide to send out an e-mail that says “Let’s meet and get our stories straight.”
That will solve the problem, right? Well, no, that’s not the best course. It screams collusion, fixing, falsification.
But you do want to evaluate all your actions and documents before you take action. If you discover discrepancies, as one expert recommends, you may have to tell the firing manager:
Look. We could fire the person now, but we’ll be married to him in court for years. If we wait, we can get this done without all that baggage.
Of course, the best solution is to do things right from the beginning. And that starts with your policies on performance management, discipline, and termination.
Tomorrow, we’ll look at some tips for handling “fire-resistant” employees. We’ll also tell you why you should seriously consider joining us at the gorgeous Claremont resort in Berkeley this fall.
Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!
It’s difficult to tell an employee that his or her performance isn’t up to snuff, but coming up with an alternate reason – even if you’re just trying to spare the person’s feelings – is almost always riskier and more problematic in the long run. Tactful candor is always the best approach.
It’s difficult to tell an employee that his or her performance isn’t up to snuff, but coming up with an alternate reason – even if you’re just trying to spare the person’s feelings – is almost always riskier and more problematic in the long run. Tactful candor is always the best approach.