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Business Protection Bulletin


By June 1, 2011No Comments

All too many employers find themselves enmeshed in complex and costly litigation because they’ve made simple, avoidable errors while terminating one of their employees. Even if you’ve done everything by the book, there will never be a guaranteed way to avoid such lawsuits.

That said, making sure that you do everything properly and avoid some simple mistakes can drastically increase your chances of winning any resulting lawsuit. Don’t let these common termination mistakes get you in hot water:

1. Not Documenting Sufficiently. The basis you use to terminate an employee could appear superficial or groundless if you don’t have adequate documentation along the road to their termination. All problems with an employee’s performance, attendance, and so forth should be documented, including any details and supportive evidence. Regarding misconduct issues, the documentation process on the alleged incident should be accompanied by an unbiased, comprehensive investigation.

When disciplinary actions are necessary, the enforcer should compose a description of the incident, including what disciplinary actions are being taken. With a witness present, the employee should be asked to sign the paperwork. Should he/she refuse to sign it, this refusal should be noted on the paperwork.

Place your documentation in chronological order to show a clear pattern and solid foundation for terminating an employee.

2. Not Ensuring Performance Evaluations Are Accurate. Supervisors must be taught and encouraged to be fair, honest, and accurate during performance evaluations. Many wrongful termination lawsuits have been based around performance evaluations. Performance evaluations that aren’t congruent with all the other indicators of an employee’s performance are often the result of superiors giving unmerited positive appraisals to avoid confrontation. When an employee has appraisals stating their performance was adequate, but are then terminated by their employer for alleged poor performance, it can spur them to consider litigation.

3. Not Spelling Out Human Resource Procedures and Policies. All terminations should be in accordance with state and federal laws. It’s vital that your termination procedures and polices give those with the power to terminate adequate guidance and direction on complying with such laws.

Having an employee handbook that concisely and adequately describes performance and misconduct issues and consequences will also add to your credibility during litigation.

4. Not Giving an Employee Notice of Termination. Not all states require an employer to give notice of termination to an employee. However, most legal experts advise it anyway for a number of reasons. For example, giving notice can help keep an incensed employee from redirecting the reason for their termination to other non-related issues, such as discrimination.

Remember that the burden of proving an employee should have known that their actions would cause their termination is on you, the employer, if you opt not to provide employees with notice of termination. Such a situation can easily be avoided by providing an employee with a notice that clearly states a repeat of the infraction, or even an alike infraction, will result in their termination.

5. Not Providing Just Cause. An at-will employee can be terminated at any time. However, don’t assume that you can terminate any employee you wish for any reason you wish and be protected by your state’s at-will employment. The majority of your employees will likely fall under one of the protected classes, such as sex, age, race, disability, or religion. Therefore, it’s best to base all terminations on a just cause, meaning the reasoning behind the decision to terminate was based on legitimate proof or fact.