Firing? Audit for Fairness First

As many organizations have found to their dismay, being technically correct in a legal setting is often not enough. Juries tend to react more on the basis of fairness than of law. And, from a morale standpoint, so do the rest of your employees.

So before terminating an employee, you must think the way a jury thinks.

Juries ask: Was the employer fair to the employee? And if they believe it was not, the jury asks: What can we do to remedy the situation?

And sometimes they get to ask a third question: How can we punish the employer so this won’t happen again?

For instance, let’s say your company makes promises to a longtime employee, but there is no contract, no legal obligation. Then the company turns around and fires the employee. The employee sues.

Your company argues—correctly, let’s say—that it had no legal obligations. The employee says simply, “I trusted the company—the company where I gave my all for 23 years—and firing me wasn’t fair.”

With whom will the jury side? The big, cold-blooded, deep-pockets employer? Or the poor, hard-working employee with mouths to feed at home? The employee is going to get the decision every time.

What do juries want to know about an employee’s termination?

1. Did the employee know what was expected?
2. Did the employee know what consequences could result from his or her actions?
3. Did the employee get what was promised?
4. Did a manager take action before finding out the facts?
5. Was the action taken the same as was taken in similar circumstances in the past?
6. Were the decision criteria fair?
7. Did the employee have a chance to explain?
8. Did the manager or organization trick or deceive the employee in any way?
9. Did the manager “kick the employee while he or she was down”?
10. Were policies and rules followed?

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Progressive discipline and termination policies

Most organizations have a progressive discipline and termination policy, and those policies tend to demonstrate fairness. The power of progressive discipline is that before termination, there is a clear series of warnings and ample chances for the employee to improve. In other words, it is clear to everyone—including the jury—that the organization has given the employee a fair shake.

Progressive discipline policies generally do reserve the right to skip steps and fire immediately for certain offenses such as stealing or violence. However, you should exercise this right with caution.

Contracts and union agreements

Is there a contract or union agreement? If there is, you will probably be bound by the terms of that contract. Even in the absence of contracts, many courts have found that certain documents, such as employee handbooks or offer letters, can create implied employment contracts.

Statements by management during the hiring process or even at annual gatherings that indicate a guarantee of continued employment could also be construed as binding.

Also check consistency. Consistency is an important part of fair treatment. If you have consistently terminated others for the same offense that you now want to terminate someone for, you are probably going to be all right. If, however, you have never terminated an employee for an offense that has occurred frequently, and now you intend to terminate someone for that offense, you are on very thin ice.

Could this firing be viewed as discriminatory? Could the employee claim that he or she was fired not for the reason the organization gives, but because of discrimination?

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Could this firing be viewed as retaliatory? Could the employee claim that he or she was fired for performing a protected activity? For example, making a complaint to a government agency or making accusations of sexual harassment or making a workers’ compensation claim or asking for FMLA leave? If so, look at the situation carefully.

Is the employee pregnant? In general, treat pregnant women the same way you treat any other employee with a disability. You may not fire a woman because she is pregnant.

Does your documentation support your decision? Imagine yourself on the witness stand explaining that a termination was due to poor productivity. Then your ex-employee’s attorney produces a string of performance appraisals—signed by you—that say “satisfactory” or “good.” Case closed. No matter what you say now, you appear to be lying. 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—that is, gave raises and bonuses—may be enough to convince a jury that you are lying about the poor performance.

Is the employee a long-term employee? In general, courts expect long-term employees to be given a little more leniency than short-term employees. Whenever you are considering firing a long-term employee, take a special look at the situation. 

Tomorrow: Should termination be a group decision?

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