By Abena Sanders
In today’s overly litigious workplace, the act of terminating an employee has become a high-risk proposition. As the employment landscape grows bleaker – and the EEOC (Equal Employment Opportunity Commission) gets busier – employers must be careful to manage liability associated with a these stressful decisions by terminating employees the “right” way.
Discipline with Consistency: On a call center floor, the need for consistency in the application of policies can be amplified dramatically. Unlike organizations with mostly enclosed offices, on a call center floor every employee has a clear view of who does what, where, and when. For example, if your policies prohibit the use of mobile devices on the floor, employee X will likely have a keen sense of when employee Y is getting away with a rule violation.
Unfortunately, employees who observe favoritism or the inconsistent application of policies will consider the possibility of discrimination in the workplace. In a discrimination case, even if an employer’s reason for disciplining or terminating an employee was completely legitimate, the employer can still lose the case if he or she applied company policies unequally and in a manner perceived to disfavor members of protected categories (race, gender, religion, disability, age, etc.). When an employee violates a policy, investigate the alleged infraction, ensure that the employee is aware of the rule, and issue discipline consistent with previous similar situations. Training may be necessary for managers who are not familiar with the need for consistent application of company policies.
Document Your Decisions: Protect yourself in the context of an investigation or lawsuit by establishing a paper trail easily decipherable by a judge, jury, or investigator. While you may be convinced that your reason for terminating an employee is perfectly obvious and justified (“She committed time-card fraud seventeen times”), keep in mind that oral testimony after the fact is never as convincing as evidence of warnings and written documentation prepared at the time of the events. Prepare warnings, counseling records, evaluations, manager narratives, and unemployment benefit documents as if they will be attached to a brief as trial exhibits. Even oral warnings should be memorialized after the fact in a clear, concise narrative. During the course of your termination investigation, if you find that your documentation appears to be lacking, weigh the potential legal challenges against the documentation available.
Terminate with Respect: Kindness matters. Employees often approach the EEOC or an attorney less because they have identified actual discrimination in the workplace and more because they feel that their employer has treated them unfairly and ungraciously. The risk of further angering an employee in an already stressful position – thereby increasing the risk of an EEOC investigation or lawsuit – can be minimized by observing a few best practices. Choose a private time and place to meet with the employee and deliver the message with dignity (a termination on the call center floor or within earshot of other employees is almost never appropriate). Try to schedule the meeting during the last day shift at the end of the workweek, as this is often the quietest time. Have a manager or human resources department representative attend the meeting as well. When you meet, resist the urge to recite a “laundry list” of the employee’s shortcomings.
Many states require that an employer pay the departing employee all wages then due shortly after the termination. Determine how long you have to prepare the final paycheck under your state’s laws, and be prepared to deliver the payment on a timely basis. Communicate your intentions to the employee to minimize some of his or her anxiety. It is often advisable to have the final paycheck available on the final day, and most states require that accrued vacation pay be included in the final paycheck.
Particularly in the case of “problem” terminations, consider offering a severance package in exchange for the employee’s release of claims against you. While such waiver agreements cannot guarantee that that the former employee will not sue, they increase the probability that any such lawsuit will be dismissed expediently. Do not hesitate to consult legal counsel regarding your situation and any specific legal questions you might have.
The Aftermath: Post-termination, employees who have trouble obtaining other employment may blame you for hindering their job search by giving negative references to their prospective employers. Disputes related to negative references may turn into lawsuits under theories of discrimination, defamation, or intentional infliction of emotional distress, among others. At the same time, categorically refusing to say anything about the employee bears its own risks. Employers can protect themselves from future proceedings by writing a neutral reference policy to be uniformly applied. Where possible, management should consider designating one person within the organization, preferably in human resources, to handle all reference requests. In general, limit discussion of the termination to personnel with legitimate business interests in the information as opposed to gossip-seekers.
There are many factors to evaluate when deciding to terminate, executing the termination, and responding to inquiries post-termination. While it is impossible to create an inclusive list of everything an employer must consider, these tips should help you to execute and defend your termination decision with a measure of confidence.
Abena Sanders is an associate in the Atlanta office of Fisher & Phillips LLP. Her practice focuses on the representation of management in employment litigation and administrative proceedings arising under Title VII. Abena also counsels clients as to preventive measures aimed at reducing discrimination claims.
[From Connection Magazine – November 2011]