Consulting with HR before any termination should be an absolute. And not just to help with the firing itself; HR needs to be involved long before that.
What sorts of things can go wrong when HR’s not involved in the decision to terminate? Let’s list a few of the expensive problems that can crop up:
- No clear, documented basis for the decision. A supervisor or manager may “know” there’s a problem, but in court it will have to be proven. And chances are, there’s some embarrassing evidence like a performance appraisal that says “good” or “excellent.”
- No investigation. When there’s no investigation, it will appear to factfinders and juries) that the decision to terminate was casual and unfair.
- No evidence that employee knew the rule that was broken. Juries think that this is a basic element of fairness. So it’s helpful to have written documentation that the employee know the rule.
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- Failed to follow progressive discipline. This is not a law, of course, but if your policies say you follow progressive discipline, you have to do it. Furthermore, juries always want to see that an employee had a fair chance to improve.
- Employee not given a chance to respond to an accusation. Again, the element of fairness. And, sometimes, there may be a good explanation for the employee’s actions that led to the termination. (We recently featured the story of a maid who was about to be fired for failing to clean an executive office. It was later revealed that the reason the maid had not cleaned was that the executive was in the office having sex with his subordinate.)
- Punishment not appropriate to the infraction. Actions taken quickly without thinking, and especially if the manager doing the termination was angry, are often too serious for the infraction.
- No consideration of length of service. A twenty-year employee may be entitled to more deference than a six-month employee.
- Punishment not consistent. If the punishment is not consistent with what was done in similar situations in the past, there must be a good explanation. Otherwise, this will be a problem in court. How will it be explained, other than discrimination?
- No analysis of potential for a discrimination claim. Is the employee being fired a member of a protected class? Caution may be advised is the basis for the termination is not well-documented.
- No consideration of the potential for a suit alleging retaliation. If the person has recently filed a claim, or requested leave, or complained about safety or pay issues, there is a strong likelihood of a retaliation claim.
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- Firing done in an unacceptable manner. For example:
- Not done in person
- Done with anger displayed
- Done in public
- Employee not told the real reason for the termination. Supervisors and managers want to soften the blow, so instead of saying that the quality of the work is a problem, they blame “budget” or “the economy.” That comes back to bite when the person finds that you hired a replacement and alleges discrimination. Now what do you say? Either you were lying then or you’re lying now.
- Contractual agreements not honored. There may be employment agreements or union contracts that must be honored.
I’m sure readers can add more to the list, but the bottom line is clear—Never let managers or supervisors terminate an employee without letting HR make a thorough evaluation of the decision. Sometimes, it’s better to back off, avoid the lawsuit, and deal with the problem in a slower, but less risky, way.