Published July 2010
If you haven’t read Part 1 of this article, it is available by clicking here.
Let’s take a typical situation to demonstrate how the process should work for an employee termination. Imagine you’re the VP of Human Resources at a manufacturing company and one day your phone rings. One of the other officers or managers says he has a terrible employee and needs to fire him immediately. Your instincts tell you that more work needs to be done to protect the company, the manager and yourself. Managers often try to rush the termination process to get rid of a troublesome employee and will often only provide information which supports their position. How do you, as the head of HR or president of the company, protect the business from a poor decision?
First, don’t accept what the manager tells you on its face value. He may assure you that this employee is a terrible worker and that there is ample documentation to support the discharge. Ask for the employee’s personnel records, including the manager’s own file on the employee, and look at everything closely. What do the performance appraisals say about the employee? Is there documentation of the alleged reason for discharge? What does the company’s code of conduct say about the level of discipline for the employee’s offense? Has the company’s progressive discipline program been followed? Has the employee been interviewed and given an opportunity to explain the behavior that has led to this point? Take the opportunity to speak with any witnesses to the occurrence giving rise the discharge. Do they support the manager’s contentions or contradict them? Are they disinterested or do they dislike either the employee or the manager?
Once you’ve assembled the factual record, go through this checklist:
- Does the employee have protected status under any of the state, federal or local laws?
- If so, are there other similarly protected individuals within the unit where the employee worked or the company itself? Do these employees receive discipline or termination at a rate higher than their co-workers in their units?
- Is there any evidence that the manager or co-workers are biased against this employee? Is there any proof such as statements made by co-workers or managers about this bias? Is there any documented evidence of their bias such as notes, graffiti or e-mail jokes that can be used by the discharged employee to prove this bias?
- Were there people in the manager’s unit who committed acts similar in nature or severity to those allegedly committed by the employee? If so, what happened to them? Were they discharged? Warned? Slapped on the wrist?
Your next steps will depend on the answers to these questions. If there is evidence of any type of discrimination you need to think long and hard about the consequences of that evidence. It is better to return a poor employee and continue the discipline process than to discharge outright and face a possible lawsuit from the employee or the federal government.
Here are some things every employer can do to protect itself:
- Your business must have an up to date human resources policy manual distributed to all employees and a signed form from each employee that they’ve received a copy of the manual. It should clearly set forth expectations for performance and conduct as well as statements on the company’s policies on sexual harassment, Americans with Disabilities Act compliance, EEO, FMLA and the employee’s rights to appeal decisions internally.
- Never authorize individual managers to make decisions on terminations. Every instance must be reviewed by someone in HR and a higher authority in the company before the manager informs the employee of the discharge.
- Take your time. If the presence of the employee causes problems, take him out of service or suspend him with pay pending a decision on his future employment. A decision you make in haste or which a manager forces you into making will likely be the wrong one and you’ll regret it later.
- Never transfer a “high maintenance” or problem employee to another manager in the hopes that the employee’s performance or disciplinary issues will magically disappear with a change of scenery. They will not and you will only embolden the employee to continue to act up, as he will sense he has the upper hand. You need to confront the issues raised by the employee’s bad behavior and, if need be, discipline or discharge him.
- If a manager or officer is exerting strong pressure to fire the employee, do the following:
- Sit the manager down. Tell him to assume that the fired employee has filed a lawsuit in federal court and is represented by the smartest and most able lawyer in town. The manager is the company’s star witness and will have to explain to the lawyer and the jury, under oath, why the manager made the decision to fire this employee. The manager will be cross-examined on everything the company has produced. Show him any inconsistencies in the written record, the contradictory statements from the employee’s co-workers, the difference in treatment between the fired employee and the manager’s “pet” that everyone knows about. Ask him if he wants to look like a fool on the witness stand and cost the company hundreds of thousands of dollars in damages and attorney’s fees when the company loses.
- If you do this, the manager is likely to be more understanding and work closely with you to better document the decision to discharge.
Bad employees eventually give you plenty of reasons to discharge them. If the record doesn’t support a decision to discharge the employee now, it will later, provided that you work closely with management and document your case in accordance with the above rules.
BASIC recently sponsored a Webinar titled “Termination Mistakes You Can’t Afford to Make” which was recorded for Agents and Clients to view at their convenience. Click here to access the Webinar recording.
Click here for a PDF copy of the slides from the Webinar.