While the unemployment rate continues to remain low, given the current potential for a recession or sustained economic downturn, more employers are firing employees. Some employers are also seeing more discrimination claims following terminations.
It’s impossible to prevent all fired employees from filing claims, but the more proactive an employer is leading up to a termination, the more likely it is that an employee won’t file a claim. This article is a reminder to employers to proceed with caution on all termination decisions.
In her book, Thoughtfully Fit: Your Training Plan for Life & Business Success, Darcy Luoma stresses the need to pause, and then think, before you act. This simple model applies to all termination decisions.
Pausing helps make sure the termination decision is sound. While most employees are employees at will (and may be terminated with or without cause), given the numerous bases for discrimination and retaliation claims, it’s preferable for an employer to have a legitimate, nondiscriminatory reason for firing an employee.
Taking a pause also allows an employer to determine whether it has gathered sufficient information before making the final termination decision:
- Did the employee receive adequate notice of the work rules or performance standards and the possible consequences of failure to comply?
- Did you conduct an investigation before termination?
- During your investigation, did you find proof of misconduct or of a performance discrepancy?
Not all terminations have to be supported by a violation of a work rule or performance standard. But when an employer can support a termination with a work rule violation or performance standard, that may minimize the potential for a claim or prevent a claim from proceeding if filed. General work rules, such as honesty, may be used to support a termination.
Not all terminations require a thorough investigation. But documented discussions with supervisors or coworkers regarding the employee facing termination may help avoid “he said, she said” situations and conflicting reasons for the termination.
Discrimination claims are routinely made because similarly situated employees are treated differently. A fair investigation with sufficient evidence to support a termination can be used to establish that the terminated employee wasn’t similarly situated with employees who weren’t terminated.
After you have taken a pause, the next step is to think. Employers should take the time to think about the decision:
- Was your investigation fair and objective?
- Have you dealt with your employees equally, without discrimination?
- Is termination the appropriate response?
Employers should review the fruits of their investigation and think about whether any other steps need to be taken as part of the investigation. While employers don’t have to treat all employees exactly the same way depending on the circumstances (such as longevity and prior disciplinary or performance history), it’s important for employers to consider whether other similarly situated employees were terminated for similar conduct.
Finally, if the termination is for disciplinary reasons or based on performance, is termination the appropriate action? Is there a more appropriate lesser step, such as a last-chance agreement or performance improvement plan (PIP) that should be used?
Once the employer has paused to review the evidence, and thought to consider whether termination is appropriate, then it can act.
If the termination is to be done orally, always have one person communicate the termination decision and another person be present to witness (either in person or by phone, Teams, or Zoom) and take notes of this discussion.
If the terminated employee raises a concern not previously known to the employer, it may be prudent to delay the termination until that concern is fully vetted. In such instances, the employer may instead decide to suspend the employee with pay pending further investigation.
Discrimination claims are costly and time-consuming. Even when these claims are without merit, they can consume hours and hours of your time.
Termination decisions can often be difficult, but also can require immediate action. Even when time is of the essence, taking the extra time to pause and think before you act may be the difference between a termination where the employee accepts the decision versus a termination where the employee contacts an attorney. Alternatively, you may decide that termination isn’t appropriate.
Saul Glazer is a partner with Axley Brynelson, LLP. He can be reached at email@example.com.