Of all the employment decisions employers make, none get litigated more often than termination decisions. To protect your company, review these questions before any termination.

  1. Does the employee have a contract of employment? If so, what does it say about grounds for termination?
  2. Has the employee acknowledged in writing that employment is terminable at will?
  3. Does the employer have any policies requiring it to take specific steps before termination? If so, has it taken those steps?
  4. Has the employee recently engaged in protected activity, such as complaining about discrimination, harassment, or some unethical or unlawful activity?
  5. Has the employee asked for an accommodation for a disability? Is there reason to believe that the reason for termination may be attributable to a disability?
  6. What is the reason for the termination?
  7. How strong is the evidence to support that reason?
  8. Has the issue been addressed with the employee? If so, is that documented?
  9. How long has the employee worked for the company?
  10. Does the employer plan to refill the position? If not, how will the former employee’s duties be covered?
  11. Is the employee in any protected category that is underrepresented within the organization?
  12. Has the employer considered less severe actions (warning, suspension, a cut in pay)?
  13. Has the employer dealt with similar issues in the past? If so, is this issue being handled consistently with the prior ones? If not, what’s the basis for treating this one differently?
  14. If the reason for termination is performance related, has the employee received performance evaluations that identify the problem?
  15. Has the employee received any awards or positive recognition?
  16. If the reason for termination is based on misconduct, has the employee been given a chance to tell his or her side of the story? Has the issue been investigated?

    Copyright: omnimages / 123RF Stock Photo
    Copyright: omnimages / 123RF Stock Photo
  17. Is there reason to believe that the employee has not received all the compensation and meal or rest breaks that applicable law requires?
  18. Does the person hold any other positions with the organization (such as being a corporate officer or director or trustee of a benefit plan)?
  19. If the employee challenges the decision, what grounds does the company think the employee will raise?
  20. Is there any particular reason why the decision may be perceived as unfair?
  21. Are there steps the company needs to take before termination to preserve client or customer relationships?
  22. Are there steps the company needs to take before termination to protect its information systems or confidential information?
  23. Is there any pending or threatened litigation that will require the employee’s involvement?
  24. Is there reason to be concerned that this employee may react violently?

The answers to these questions will help you determine if termination is appropriate and if you should take further steps, such as consulting experienced counsel, to protect your company.

Here’s an update I did on this post’s 1st birthday.

People identify with their jobs. Ask someone what they do and they’ll just assume you’re asking what their job is. They may spend more time sleeping than working. They may even spend work time sleeping. But no one ever responds to “What do you do?” with “I sleep.”

So it’s no surprise that some people react poorly to being terminated. However, the recently fired head of the Pacifica Foundation, which runs several radio stations (including public radio station KPFA in Berkeley) is not going away peacefully. In fact, as reported in the Mercury News, she cut the locks and barricaded herself in her old office. This occurred on March 17, 2014, four days after the foundation’s board voted to fire Summer Reese. At that point, she was one month into her tenure as Executive Director (although she’d previously held the position on an interim basis.) She is joined by her mother and other supporters and, as far as I can tell, they’re still there.

There are important lessons here for people who have to inform employees that they’re being terminated. You really can’t predict how they’re going to react, but you should expect them to be emotional. Emotional people don’t always think clearly. That means you may have to explain things more than once. You don’t want them leaving without a clear understanding of the basis for the decision. (At the same time, you don’t want to say something to make the situation worse.)

You also need to stay calm yourself and be prepared to diffuse tense situations. Or if you can’t diffuse the situation, you need to remove yourself and get assistance, which may be someone from security, human resources, or, if storming the barricades is necessary, the military.

iStock_000015928150Small

It happens all of the time.  You hire someone and he or she just is not a good fit for your company.  Maybe you need a self starter and she needs a lot of direction.  Maybe you need high energy and he is lethargic.  Maybe you need upbeat and she is a complainer.  Maybe you had high expectations for the salary you agreed to pay, and he just isn’t meeting those expectations.  You don’t have a lot of performance documentation, either because he just started, or she isn’t that bad.  But it isn’t working. Employment is at-will.  You can terminate for any reason as long as it isn’t illegal, right?  You don’t have to explain yourself, right?  You just tell her the truth — she isn’t the right fit.

Well, I am here to tell you that telling someone that he or she isn’t the “right fit” is simply an invitation to get sued.  But why?

When you tell someone “you are not the right fit” they often interpret it as blaming, as if you are telling them there is something wrong with them.  It makes it about them, and not about you, and the company, and what skills are needed to effectively do the job.  It makes it feel very personal.  That makes people upset, and upset former employees find lawyers.

So next time you find yourself wanting to terminate someone and tell them “you are not the right fit,” think about a better way to convey the same concept.  Try to make it about you, not them.

  • “I have lost faith/confidence in your judgment.”
  • “I am not convinced you can do the job that we need.”
  • “This is not working for either one of us.”
  • “ I am not confident that we can work successfully together.”
  • “The company needs someone who is a real self starter and can work without direction, we have not found that to be the case with your approach to work.”
  • “We need someone who can drive results and lead the team, and your numbers are below expectations.”

Of course, it is always better to have specific performance documentation with examples of failure to meet clear expectations.  But in the absence of perfect evidence, at least try to avoid the “right fit” trap.

 

  1. This is hard for me, too. – While usually true, it’s important to recognize that the person doing the firing has it better than the person getting fired. In litigation, the statement will be used to make you sound self-centered and insensitive.
  2. This is a decision by the company that I don’t necessarily agree with. – If you disagree with the termination decision, you do what you can to persuade the decision maker that it’s a mistake. Once the decision is made though, it’s your job to represent your employer.
  3. We’ll send you your final pay in a few days. – Not in California you won’t. Labor Code § 201: “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” So you will have a final paycheck, including unused vacation, ready to hand the person on the day you terminate.
  4. I should have probably pointed this out sooner . . . . – If someone is terminated for poor performance, they should have been clearly informed (including in writing – hopefully in a written performance review) of how they were deficient and needed to improve. Regardless of the legal theory at issue, juries, judges, and arbitrators are looking for fairness. This means the person was told what was wrong and given a reasonable chance to correct the issue.
  5. Your complaint to [insert government agency] forces us to question your loyalty to the company. – You might as well just list “retaliation” as the reason for termination.
  6. You violated our company policies when you told your co-workers what you were making. – This may be a problem anywhere according to the NLRB. But in addition, Labor Code § 232 specifically prohibits employers from taking any action against an employee who discloses his or her wages.
  7. We’re getting rid of the deadwood./We need some new blood./We’re looking for someone with a fresh perspective./There’s too much gray hair around here./We’re trying to update our image. – I suppose these statements are slightly better than: “You’re too old.” But only slightly.
  8. I don’t have to give you a reason. – Technically, that’s true. But as I explained here, you don’t want the person using his or her imagination to figure out the reason. Just make sure the reason you give is accurate and supportable.

Update – August 23, 2013: Our partner Christina Stoneburner at the Employment Discrimination Report added a ninth item to the list. You can read it here. Some people are so competitive!

Fired from job

 

Let’s say you have good reasons for termination. Perhaps the employee has well documented performance issues, has fallen asleep on the job, or has violated the harassment policy. Many employers seem to think “good cause” for termination equals good reasons to fight unemployment. A good idea? Not necessarily. Here’s why.

The standards for receiving unemployment are low. There are many circumstances where there is plenty of justification for termination, yet the employee still qualifies for unemployment. To be denied unemployment, the employee must have engaged in “misconduct” as that term is defined by the EDD.

For example, what if the employee falls asleep on the job? Is that misconduct? Quite notably, the EDD makes a distinction between deliberate sleeping (misconduct) and presumably non-deliberate “dozing off” (not misconduct). What if the employee is fired based on a customer complaint? Is that misconduct? According to the EDD, only if the employer also submits proof that the complaint was accurate.

Many employers think they must dispute unemployment to prove that the termination was justified. However, denying someone unemployment can make them just desperate enough financially to seek out a plaintiff’s attorney.

Plus, I have seen many disputed unemployment claims come back to haunt employers, especially if they go to hearing. When an Administrative Law Judge sides with the employee in a disputed claim, that employee is emboldened to sue. I have heard many plaintiffs testify at deposition that they weren’t sure they had a good claim until after winning at the unemployment hearing.

It is fine to contest a claim for an employee who has resigned (preferably with a resignation letter), but for a termination, think twice. Pushing back on unemployment may result in pushing the employee to file a lawsuit.

 

This is the nightmare of every employment defense attorney who tries cases.  A federal court jury in Sacramento awarded plaintiff Ani Chopourian $168 million against her former employer, Mercy General Hospital.  Carol J. Williams at the LA Times wrote about the case here.  But I wanted more details, so I went directly to the court’s online docket.  The last document added was this note from the jury:  “May we please have a calculator?”  Ouch!