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Anticipating a Termination? Avoid the Legal Hazards

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 The principal cause for terminated employees to seek legal redress for
what they regard as being treated unfairly is being fired when they didn't see it coming. It happens more often than you might think. "Imagine if your spouse after 10 years and no complaints suddenly tells you, 'I'm done, this relationship isn't working for me anymore'" says Sheryl Jaffee Halpern, a principal in the Labor and Employment Group of the Much Shelist law firm in Chicago. An employee in the equivalent situation would likely be bewildered, hurt -- and angry.

Barbara Richman, a senior consultant with HR Mpact in Memphis, refers

to terminations as "the capital punishment of the workplace." Making a termination decision impulsively when emotions are running high, can lead to disaster. Being deliberate, objective and thoughtful is the name of the game, Richman says. Sometimes this is easier said than done when you are really fed up.

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Protected Class

Employees who fall under the anti-discrimination "protected class"

criteria pose the greatest legal risk in a poorly handled termination. In addition to the most familiar ones -- age over 40, gender, race, religion, national origin, and disability status -- also include familial and veteran status, as well as genetics. (If you somehow knew an employee had a genetic predisposition to a serious disease, and the employee knew you had the information, this could provide the basis for a discrimination charge.)

Angry terminated exempt employees who don't fall into any of the protected
class criteria (or even if they do) might assert a claim stating he or she hadn't been paid for overtime worked, or given adequate break time.

Terminated employees don't always file for unemployment benefits if they

anticipate being able to find a new job promptly. But those who leave believing they have been wronged are much more inclined to file for benefits, Halpern suggests. (Of course a dismissed employee may or may not be eligible for benefits, depending on the reasons for termination.) www.hrp.net

 This could be particularly problematic if the individual has been treated as

an independent contractor but should have been classified as an employee. Telling such a person his or her services will no longer be needed may feel like being fired from a "job," especially if it has been a long-term arrangement.

An unemployment benefit
application in this situation would set off alarm bells in your state's employment division since no payroll taxes would be associated with the individual, bringing on a review not only of the individual's case but possibly an entire payroll audit.

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Appearance of Retaliation

Also, exercise extreme caution if a termination could be viewed as retaliation

for a legitimate activity, such as participating in an investigation, or voicing a complaint about an unlawful employment practice. Retaliatory discrimination cases are now the most common claims filed with the Equal Employment Opportunity Commission (EEOC).

Avoiding all of these problems involves both steps taken prior to a

termination, and how the termination itself is handled -- assuming it is indeed justified.

The first place to start, after checking your own employee handbook to
ensure your contemplated actions are consistent with your own stated policies, is with a review of the employee's performance records. Obvious as this sounds, the "didn't-see-it-coming scenario" noted by Halpern occurs when an underperforming employee whose assessments and other records have given no indication of a problem, is fired. This may be the consequence of a direct supervisor being friends with the employee, or it could be the supervisor has simply tolerated poor performance due to being conflictaverse. www.hrp.net

Opportunity to Fix the Problem

Unless the termination decision is based on an extreme disciplinary

infraction (e.g. injuring another employee), giving the employee an opportunity to address the issue at hand is critical. The employee should receive notification both spoken and in writing, about what needs to change, and be given feedback during a trial period.

If the performance issue cannot be resolved, or if the basis for termination is

a disciplinary matter, determine whether other employees under similar circumstances have been terminated, or suffered lesser consequences.

If all signs indicate termination is appropriate, beyond handling all the

administrative requirements of the process, treating the employee with respect is critical, no matter how disappointed or angry you may be. Among other things, this means keeping the decision as confidential as possible in advance, and communicating the decision unequivocally yet with compassion at a face-to-face meeting in a private setting. Imagine how you might feel if you were on the other side of the desk.

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None of this guarantees you will not still face a legal challenge, but the risk will be reduced. Do not hesitate to consult with an employment attorney if you have any misgivings about your situation.

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