How long of a leash must you give an employee before firing?

When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.


2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Do your employees understand that social media is a very public conversation?

“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”

If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.

Texas district votes to fire teacher who tried to report

undocumented students to Trump on Twitter

WIRTW #556 (the “comfort zone” edition)

My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷‍♂️

Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.

Needless to say, I’m pretty darn proud of my (not so) little girl.

Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.

Here’s what I read this week.

An obituary for employment at-will

Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?“

Well, Donna, there’s no need to terminate these laws; they are already dead.

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional

If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

Proposed law wants to convert “anti-vaxxer” into a protected class

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

     1/ An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

     2/ An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

Thorough internal investigation saves employer from discrimination claim

A bank fires two female employees for violating its vault-access policy. They claim sex discrimination, pointing their fingers squarely at three male employees who they say violated the same policy, but only received performance counseling.

Open and shut discrimination case? Not quite.

WIRTW #555 (the “you get a shirt, and you get a shirt…” edition)

I ❤️ that my daughter’s band is now selling its own merch.

Here’s what I read this week.

The top 10 wage and hour mistakes businesses keep making

No law causes employers more compliance headaches than the Fair Labor Standards Act. On its face it’s simple—pay employees no less than a minimum wage of $7.25 per hour (or more, depending on your state or locality), and non-exempt employees an overtime premium of 1.5 times their regular rate of pay for any hours worked in excess of 40 in any work week.

Simple on its face, yet extraordinarily complicated in application. This law costs employers billions of dollars per year in non-compliance.

Does the attorney-client privilege protect harassment investigations conducted by a lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her. The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.