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Recently the American Bar Association released their statistic on Employment Related law suits. 127% increase in 2014 over 2015. But the more impressive number is that it is 900% increase over 5 years ago. This number isn’t driven by employers who have gone out of their way to purposefully do something expecting to get sued. Employers make mistakes and given how litigious we are, employees sue. Terminations are the spark to many employment lawsuits. And for each of the six kinds, there are some common steps employers can take to defend themselves if a termination is challenged in court:
1. NEW HIRES. When new employees are dismissed, their legal claims typically assert they didn’t know about performance expectations or had no training. Or, they may sue if they know of other employees who didn’t perform well yet kept their jobs.
The key to defending such claims: Completely document the training and any failure to meet expectations, while showing that you uniformly applied the rules.
2. ABSENTEEISM. Again, documentation is critical. Document that you notified the employee of the attendance policy and the employee failed to comply. Also be able to show that you uniformly applied the policy.
Make sure you don’t use protected absences (ADA or state laws, such as jury-duty absences) as the basis for termination decisions.
3. MISCONDUCT. Employees terminated for violating conduct rules often claim they were “found guilty” based entirely owner’s report.
It’s too late to get the worker’s side after termination. So always get the employee to provide an explanation before a decision is made. During the investigation, you have the legitimate option of placing the employee on a leave of absence.
4. SUDDENLY DECLINING PERFORMANCE. The employee’s performance actually may be deteriorating—or your perception of the performance may have changed. Sometimes it’s both.
For example, a stressful family situation may distract the employee. On the other hand, a new supervisor or different job duties may lead to a different judgment.
In these cases, it’s prudent to go slowly. Include the employee in your discussions about the cause and look for ways to improve. Document those discussions.
If performance doesn’t improve, you will want to be able to show you made a reasonable effort to help the employee keep his or her job.
Finally, employers should try to develop objective evaluation systems that don’t rely solely on any one supervisor’s subjective opinion.
5. RESIGNATIONS. The risk: Employees can claim they were “constructively discharged.” If the former employee can show that conditions were so intolerable that a reasonable person would feel there was no alternative but to resign, then the resignation is equivalent to a termination.
So, when employees quit, it may be tempting to tell them, “Good riddance!” But a safer strategy is to do the opposite: Ask them to reconsider. Doing so may preclude a constructive-discharge claim.
6. THE DANGEROUS “NO REASON” TERMINATION. In at-will states, employers that have done what is necessary to retain employees’ at-will status don’t need a good reason (or any reason at all) to fire them. However, employers rely on this rule at their peril.
Everyone expects some reasonable explanation for a termination, especially if the employee is a member of a protected class (e.g., race, gender, age, religion, disability).
To defend against a discrimination claim, always be able to articulate a legitimate, nondiscriminatory reason. And always have the decision-maker document the reason. (If the decision-maker leaves the company, you’ll want to be able to explain to a jury why the employee was fired.)