Monday, June 22, 2009

Have you thought about these four issues before you fired that employee?

BLR’s HR Daily Advisor recently published a helpful checklist of the 10 Questions You Must Ask Before Firing (part 1 and part 2). I have synthesized the list into four key considerations:

1. Have you followed your own documents? There are several documents that inform the employment relationship – handbooks and other policy manuals, and contracts, both with individual employees and union agreements. Any well-written handbook should have a disclaimer that it is not a contract, that it is not binding on the company, and that the employee should not rely on it as such. Companies should nevertheless be careful to ensure that if it deviates from a policy, it has a good reason to do so an a history of similar deviations in similar circumstances. Union agreements have their own unique set of issues. Does the contract allow for termination? If so, are there rules or processes that must be followed? Are you acting out of an anti-union animus?

2. Have you been consistent? Consistency is paramount in any employment decision, and will go a long way to dispelling inferences of discrimination. Consistency looks at how you treated similarly-situated employees in similar circumstances. Two special circumstances merit mention. Retaliation is the single biggest employment practices risk facing employers today. If an employee has recently engaged in protected activity, triple-check to make sure the rest of your house is in order before terminating. In Ohio, pregnant employees gain special rights on their first day of employment, and have to be given their job back the expiration of maternity leave.

3. Do you have a well-documented business reason for the termination? When an employer relies on undocumented accounts of misconduct to support a termination, it is fair for a court or jury to infer that those accounts were created post-termination and question their legitimacy. So, have all performance and other problems with the employee been documented? Has the employee signed off on the record, or has it been documented that the employee refused to sign?

4. Have you been fair? This is the most important reason. Lawyers spend months, and sometimes years, preparing their case for trial. A trial lasts days, sometimes weeks. During that trial, the jury will hear from countless witnesses and see myriad documents. Every piece has been carefully laid out by the attorneys to make the most persuasive presentation possible. Jury instructions will be carefully drafted to ensure that the jury is given the correct law to apply to the case in reaching its decision, And, that jury will listen to bits and pieces and retain even less. At the end of day, no matter what the jurors are told, I believe that in most cases, the decision will come down to one fundamental question – was the employee treated fairly? If that juror, or his or her wife, child, or parent, was treated as the plaintiff was treated, would that juror believe he or she had gotten a fair shake, or was mistreated? At the end of the day, how you answer this question will most likely signal how you decision will be judged.

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For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or