Ten Tips to Prevent Termination Headaches

Ask any HR professional the most difficult aspect of human resources management, and a likely answer will be involuntary terminations. Far too often, what should be a routine termination ends up in litigation, arbitration, or mediation. "How did we get to this point?" ask many employers. Most employment litigation is the direct result of some common termination mistakes that could be prevented. To counter these mistakes, we have identified ten termination tips that should make the process less stressful and help you and your employer stay out of the courtroom.

1. Follow your written termination policies. An employer that ignores its own policies is asking for trouble. Employees can claim the policy implied an obligation that terminations would be handled in a specific way and that they were wrongfully discharged in violation of the policy. Make sure that managers who handle terminations work with the human resources department and are trained on how to apply the policies. In addition, explain the policies to every employee and make sure each employee acknowledges receipt of them.
    

2. Investigate thoroughly before considering termination. The threshold for initiating an investigation should be relatively low. When you have a good reason to believe that an employee violated a rule, policy, guideline, or procedure, you should investigate. If the violation is extremely serious, suspend the employee pending the outcome of the investigation and then take appropriate disciplinary action.
   
   Timeliness in an investigation is crucial. In some cases, such as situations involving harassment, failing to investigate thoroughly and promptly could expose the organization to liability. In addition, you may appear to condone the employee’s actions by allowing too much time between infractions and corrective actions. Further, if you do not act promptly, it will be more difficult to initiate or defend discipline in other cases.

3. Consider alternatives to termination in appropriate cases. Look for alternatives to discharge when you can. Termination is not always the appropriate disciplinary action. Oral and written warnings and suspensions can be viable alternatives. However, make sure you are consistent in your disciplinary actions with other employees for the same offense.

4. Give the employee an opportunity for corrective action before termination, where appropriate. Remember that you are trying to turn around inappropriate behavior and help the employee improve. Employee turnover is a significant cost to most employers, so you can save both money and headaches if you can redirect an employee who is performing below expectations.

5. Carefully consider each step of the termination. Take the time to plan the phases and details of the termination process. Specifically:

• Think through your decision and follow your termination policy. Be patient and reasonable.

• Consult legal counsel before, not after, the termination.

• Consider fully the impact of laws prohibiting discrimination, including those based on race, color, religion, sex, national origin, age, or disability. In my experience, some employers do not take the law seriously or minimize the possible legal consequences. Other employers may believe that their employment liability insurance will cover the costs, "so it isn’t a big deal." These employers are surprised when these "inconsequential" complaints turn into expensive and time-consuming lawsuits. Be especially conscious of the interaction between the Family and Medical Leave Act, the Americans with Disabilities Act, and the various state workers’ compensation laws.

6. Document the causes for the termination. Before discharging an employee, ask yourself, "Is there a fully documented history of poor performance?" Your employee files should include recent performance reviews, documentation of conferences with the employee to discuss the problem, and any corrective measures taken. Don't get caught where the only document in the personnel file of an employee terminated for "performance problems" is a three-year old, partially completed performance review that indicated the employee was doing a great job. These types of inconsistencies make defending legal claims very difficult.

7. Plan the details of the termination meeting. Many employers adequately plan the process but ignore the details. Ask yourself these questions:

• When are we going to have the termination meeting? Don’t wait until Friday afternoon if an employee really should be terminated immediately. Waiting will only prolong the problem.

• Who should be there? In addition to the HR manager or supervisor conducting the termination, have a person present who can serve as a credible witness later, if needed.

• What can we do to maintain the dignity of the person? Often, employers who forget to treat an employee with dignity and respect are the most likely to be sued.

• Will all the final compensation be ready? Having the final wage payment available at the meeting should end the employer’s financial obligation to the employee. In addition, state law may require that all final wages be paid at the time of termination.

8. Give the employee the real reason for the termination. Some employers provide phony reasons for termination because they do not want to hurt the employee’s feelings. A false or misleading reason may support future litigation against the employer. Supervisors should be trained to explain tactfully the reason for discharge and to discuss only verifiable facts that influenced the decision. The employee’s personnel file also should reflect the reasons given to the employee since it may be used in subsequent litigation.

9. Limit your discussions of the termination. To ensure confidentiality and limit defamation claims, discuss termination decisions only with those people who need to know. This list may include the employee’s immediate supervisor, your own supervisor, and legal counsel.

10. Evaluate your termination process on a regular basis. Each time the termination process is completed, scrutinize it and your own behavior. Hold them up to a mirror and closely examine strengths and flaws and make necessary changes.

While these suggestions may not prevent all legal problems, they can create an orderly termination process. Following the steps will reduce liability, will ensure that the policy is implemented correctly and consistently each time, and will document your actions.