NALP HR and legal advisor, Richard Lehr, Esq., of Lehr, Middlebrooks and Vreeland, shares his top suggestions of things you should think about before terminating an employee. Lehr and his team are available to consult with NALP members as a member benefit.
1. Did the employee know the job was at risk? Sometimes a manager will
say, “Well, he should have known.” Although it is true that an individual should
inherently know that certain actions, like theft, lead to termination, do not assume
that an employee knew the job was at risk if the issue is one that has been
progressive in nature. Notifying the employee that termination may occur unless
there is improvement is one of the most important steps to help the employer
avoid employment disputes. A termination based on attendance, attitude,
performance or behavior should not be a surprise.
2. How has the employer treated others who engaged in similar
behavior? Employers are not required to treat everyone the same, but they
should be prepared to explain the business reasons for the difference in treatment.
For example, is length of service a factor? Overall work record? Job
responsibilities? An employer has the right to hold individuals who have more
responsibilities to a higher level of accountability for their actions.
3. What policy or rule did the employee violate and did the employee
have knowledge of the policy or rule? It is not necessary that every termination
should be connected to a policy or a rule, but generally, did the employee know
expectations in advance and is the decision to terminate consistent with employer
published policies or practices? Sometimes employers become frustrated when
they realize that the written policies are too restrictive. As a general principle, if
you don’t like the policy, change it – you are the one who put it in place to start
with. However, hold employees accountable to the policies as long as they are in
effect and substantiate that the employee was on notice of the policy or practice.
4. Is the employee currently under treatment for a medical issue? This
includes occupational and non-occupational injuries or illnesses. The fact that an
employee has a current medical issue does not give the employee a “pass” from
accountability. However, because there are multiple laws governing employee
medical issues, be sure that the decision to terminate the employee is not a close
call. The employer should be able to show in a clear manner that the termination
decision would have occurred anyway, without regard to the employee’s medical
5. Did the employee recently engage in protected activity? Protected
activity includes expressing a concern about pay, speaking up about discrimination
or harassment, raising ethical issues regarding employer actions and requesting
medical leave. Claims of retaliation for engaging in protected activity continue to
increase. Although engaging in protected activity does not coat the employee with
Teflon from accountability, employers should be sure that they can show the
employee would have been terminated regardless of the protected activity – don’t
make it a close call.
6. Was there a proper investigation before the decision to terminate?
Employers never have to make a termination decision on the spot. Employers
always have the luxury of time. In a worst case scenario, an employer can send an
employee home, pending further review. Avoid a “ready, fire, aim” termination
decision. Be sure that the employee had an opportunity to give her or his side of
the story, and be comfortable that you have conducted an investigation such that
you are confident with the decision to terminate.
7. Is the termination due to a performance issue or a workforce
reduction? Sometimes employers try to soften a termination by using the term
“layoff.” A layoff is a workforce reduction that is not caused by an employee’s
attitude, attendance, performance or behavior – it is due to a changed dynamic in
the business. The term “layoff” includes within it an expectancy of recall, unless
the employer states otherwise. So if there is a reduction in force and the employee
is “laid off,” tell the employee that there is no expectation of recall. If an employee
is terminated for reasons unrelated to a workforce reduction, do not use the term
“layoff” to describe the termination decision.
8. Does the documentation support the reasons for termination?
Documentation of employment decisions is done for the same reason as other
business documentation – to establish certainty and avoid the risk of a
misunderstanding. If an employee raises a legal issue over a termination decision,
the documentation about the employee may be evaluated by either a regulatory
agency, judge or a jury to see if it is consistent with the termination decision. For
example, an employee receives an “exceeds expectations” performance review,
but the employer overstated the employee’s performance and months later the
employee is terminated with no appreciable difference in performance. Be sure
that a performance appraisal documents facts, not hopes. And speaking of facts,
when documenting, write facts, not opinions. As the late Senator Daniel Patrick
Moynihan said, “People are entitled to their own opinions, but not their own facts.”
9. Should the employee be offered the opportunity to resign and receive
a severance agreement? There are circumstances where offering the employee
an opportunity to resign may be preferred by the employee. This is more likely to
occur with a long-term employee, who feels that she or he will have difficulty
explaining to a potential employer why they are no longer working for your
organization. Their hesitation to resign may be because they think that it will
preclude them from receiving unemployment compensation benefits. Often, a
resignation that is initiated by the employer does not disqualify an employee from
receiving unemployment benefits. If an employer wants to offer severance,
consider requiring that the individual signs a “goodbye forever” release, which will
include a waiver of legal claims. This release should be reviewed by counsel.
10. Were any of the individuals involved on the positive end of the
employment relationship also involved in the decision to terminate? This is
known as the “same actor inference.” The theory behind this is if an individual
previously recommended or approved the hiring or that the employee receive a
raise, why would that individual then have bias when he or she recommended or
approved the decision to terminate? This principle also extends to protected class
status. If a 60-year-old recommends or approves the termination of a 55-year-old,
how would the 55-year-old’s age be a factor in the 60-year-old’s decision? If the
terminated employee is aware that the termination decision included those who
share characteristics with the employee and may have been involved in prior
positive decisions about the employee, the employee is less likely to conclude that
there was an illegal motive behind the termination decision.