Minimizing Liability in Employee Terminations


Published on

Published in: Law, Business, Technology
1 Like
  • Be the first to comment

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Minimizing Liability in Employee Terminations

  2. 2. 2  A Feeling of Humiliation – Marching out of office in front of everyone – Not letting employee gather personal items – Security guards – Terminating computer access, etc. before told Why Does an Employee Sue?
  3. 3. 3  Careless handling of termination  Surprise – Lack of notice or warning – Failure to warn employee of performance problems  Failure to look to other available positions  Ridicule of former employee to co-workers or media Why Does an Employee Sue?
  4. 4. 4  Documentation!  Documentation!  Documentation! Best Practices for Employers
  5. 5. 5  Improved communications  Uniformity in business decisions  Lawsuit defense aids: – Faded memories – Credibility battles – Binding admissions Why Document?
  6. 6. 6  Show that you did everything you were supposed to do in furtherance of the employee‟s rights, such as: – ADA accommodation process – Investigated and corrected promptly any claims of discrimination or retaliation Why Document?
  7. 7. 7  That your discipline and/or termination of the employee were for legitimate business reasons and not discriminatory: – i.e. s/he was a bad performer Why Document?
  8. 8. 8  Hiring Date  Orientation Period  Promptly Address Problems and Continuing Issues  Annual Reviews – Avoid “Grade Inflation”  Discharge Documenting the Road to Termination
  9. 9. 9  Agreements with employees  Acknowledgements by employees  Employee requests for accommodation  Employer response to accommodation requests  Complaints and investigations  Employee performance issues  Employee misconduct  Discipline and termination decisions What Types of Things Should be Documented Along the Way?
  10. 10. 10  What is misconduct?  What is proper discipline?  Does consistency matter?  What is proper documentation? Documenting Misconduct
  11. 11. 11 Sam Supervisor observed an incident. His report is as follows: “There was something on the floor in the hall. I told Jerry Janitor to take care of it. He mouthed off and blew me off.” Is this helpful documentation? Documenting Misconduct
  12. 12. 12 A proper signed write-up might look like this: “On 9/15/05, I, Sam Supervisor, saw a puddle of grease on the floor in the west service hall. I told Jerry Janitor of the puddle, where it was, and to please clean it up immediately. He said, „I‟m busy right now. I‟ll get to that when I get around to it. If you need it sooner than then, you can $@&% well do it yourself.‟ I verbally warned him that his response was unacceptable, that his behavior would be noted in his file, and that further disciplinary action might be taken. Angie Assistant witnessed this exchange, and I asked her to write up a statement.” Documenting Misconduct
  13. 13. 13 Is this helpful documentation of misconduct?: “Wally Witness told me Jerry Janitor pushed and shoved a couple other guys in the hallway. Jerry was yelling about something. One of the guys fell.” Documenting Misconduct
  14. 14. 14 Compare with: “9/15/05, 2:20 p.m.: Called Wally Witness to my office. He said he saw Jerry Janitor push and shove Andy Annoyance and Prickly Pete in the west service hallway. Jerry was yelling at Andy and Pete about spilled grease. Andy fell down but got right back up and did not appear to be hurt. I asked Wally to write up a statement.” Documenting Misconduct
  15. 15. 15 Is this a helpful write-up regarding addressing the employee? “Jerry Janitor denied everything but then admitted it. Said he was mad because Andy and Pete had gotten him in trouble with me. Told him he shouldn‟t have acted that way.” Documenting Misconduct
  16. 16. 16 Compare with: “9/15/05, 2:30: Called Jerry Janitor into my office. Asked him if he was pushing and shoving others in the hallway. He denied it. Told him I had a witness. Jerry then admitted to yelling, pushing and shoving. Jerry admitted Andy fell. Said he was mad because Andy and Pete had intentionally spilled the grease and a lot of other things that day, and had gotten him in trouble with me. Had him write up a statement and sign it. See attached. Told him his behavior was unacceptable and the disciplinary action would be taken.” Documenting Misconduct
  17. 17. 17  How does the misconduct documentation help the employer avoid liability? – Encourages adequate investigation – Permits review – Promotes uniformity – Provides contemporaneous evidence of facts for use in lawsuits Documenting Misconduct
  18. 18. 18  Creating arguments that “employment at-will” was changed  Vague communication of the expectations and consequences going forward  Inconsistent discipline for similar infractions across the company  Inappropriately light discipline  Bringing unrelated or irrelevant issues into the documentation Common Mistakes in Disciplining
  19. 19. 19  Can performance be improved? – Usually – Do the job requirements and the skill set match? – Where skills are lacking, can training fix it? Performance Improvement Plan (PIP)
  20. 20. 20  What are the keys to improvement? – Clear communication of expectations – Clear feedback on meeting expectations – Playing to the employee‟s strengths – Getting the employee to buy into the goals – Getting the employee involved in creating the solution Performance Improvement Plan (PIP)
  21. 21. 21  What if the plan doesn‟t work? – Evaluate the communication dynamic – Re-evaluate the job requirements and the skill set – Revise the plan, revise the job, change supervision, or change the employee Performance Improvement Plan (PIP)
  22. 22. 22  What does proper documentation look like? – Objective goals – Detailed plan to meet goals • Employee‟s part • Supervisor‟s needed contribution – Ways to measure improvement/goals – Timeframe for improvement (keep an eye on the clock) – Employee or joint creation Performance Improvement Plan (PIP)
  23. 23. 23  What does proper documentation look like (cont.)? – Contains employee acknowledgements: • Of the performance problem • Of the employee‟s agreement to the plan • Of the employee‟s knowledge that his failure to perform may result in additional disciplinary action – If acknowledgment is refused – document it Performance Improvement Plan (PIP)
  24. 24. 24  What does proper documentation look like (cont.)? – Contains disclaimer: • Plan is not a contract • Employer does not have to facilitate improvement • Employee remains at-will and subject to termination at any time Performance Improvement Plan (PIP)
  25. 25. 25  How does the improvement plan documentation help the employer avoid liability? – Undermines employee‟s later claim in lawsuit that his performance was not the reason for his termination – Caveat: short-cutting improvement timeframes can permit argument that protected class status caused the short-cut and that had the full time been given, s/he would have performed Performance Improvement Plan (PIP)
  26. 26. 26  Review employee contract and personnel file – “at will”?  Analyze employee‟s federal, state and local statutory rights  Analyze state tort rights  Determine if performance management system was managed consistently and not in a discriminatory manner  Pay particular attention to employees who are protected class members under Title VII, ADEA, ADA Litigation Risk Assessment
  27. 27. 27  Determine if there are applicable rules and policies  Investigate whether the employee knew of the rules and violated the rules  Implement a lawful decision-making process Litigation Risk Assessment
  28. 28. 28  What if you determine risk of termination is high? – Do nothing – Delay the termination – Performance Improvement Plan (PIP) – Severance package Litigation Risk Assessment
  29. 29. 29  Termination of all employee electronic accounts and access  Return of company property  Notification to employee regarding status of benefits (e.g. severance pay, health benefits, vacation pay and unused sick pay)  Exit Interview  References Best Practices: Time to Terminate
  30. 30. 30  Terminating without having exhausted the ADA reasonable accommodation process  Termination for retaliatory reasons (known to the decision maker, but not to HR)  Overlooking procedural requirements  Bringing unrelated or irrelevant issues into the documentation  Sugar-coating or leaving out some reasons for termination.  Getting HR or counsel involved too late – after a bad decision has been made or bad documentation has been created Common Mistakes in Terminating
  31. 31. 31  Breach of contract (oral, written or implied)  Discrimination (Federal and/or State)  Retaliation – Discrimination – Whistleblower retaliation  Disability & FMLA  Defamation and other torts Potential Legal Challenges to an Employee Termination
  32. 32. 32  Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e-2000e-17 (“Title VII”), prohibits discrimination on the basis of race, color, religion, sex, or national origin.  The Age Discrimination in Employment Act, 29 U.S.C. sections 621 – 634 (“ADEA”), prohibits discrimination on the basis of age for individuals age 40 and over. Federal Laws Prohibiting Discriminatory Treatment
  33. 33. 33  Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. section 1981 (“Section 1981”), prohibits discrimination on the basis of race, color, or national origin.  The Family and Medical Leave Act, 29 U.S.C. sections 2601-2654 (“FMLA”), protects an employee‟s right to take unpaid leave for pregnancy, adoption, an illness, or to care for a family member with an illness. Federal Laws Prohibiting Discriminatory Treatment
  34. 34. 34  The Americans with Disabilities Act, 42 U.S.C. sections 12101-12213 (“ADA”), prohibits discrimination on the basis of a disability, a perceived disability, or association with a person with disability.  The Equal Pay Act, 29 U.S.C. sections 201, 206 (“EPA”), protects employees from pay discrimination on the basis of gender. Federal Laws Prohibiting Discriminatory Treatment
  35. 35. 35  Utah Antidiscrimination Act of 1965 State of Utah Laws Prohibiting Discriminatory Treatment
  36. 36. 36  Equal Employment Opportunity Commission (“EEOC”) and the Utah Labor Commission – Evidentiary hearing before Administrative Law Judge – Substantial Weight Review by EEOC – Request Right to Sue  State Court  Federal Court Where Can an Employee Bring a Claim/Lawsuit?
  37. 37. 37  Severance package  Restrictive covenants  Non-disparagement provisions  Confidentiality  Mutuality of releases  Older Workers Benefits Protection Act (OWBPA): 40 years or older Minimizing Litigation Risks
  38. 38. 38 Questions & Answers
  39. 39. 39 Thank You  Dylan A. Eaton direct: 208.562.4911 email: