Monday, June 17, 2019

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).

Jason Anderson, African-American, claimed that GCRTA discriminated against him because of his race by denying him a promotion, issuing excessive discipline, and ultimately terminating him. He lost. Why? Because his employer had a long and documented history of his performance and discipline issues.

  • On April 17, 2012, Anderson received a coaching for being involved in a preventable motor vehicle accident in an unmarked RTA Transit Police Vehicle. 
  • On March 5, 2013, Anderson received a coaching for making disrespectful and unprofessional comments about a fellow officer over the police radio. 
  • On August 14, 2014, Anderson received a coaching for failing to report to work for an overtime shift that Anderson had volunteered to work.
  • On January 1, 2015, Anderson received a coaching for neglecting his responsibilities as a first responder after witnessing a motor vehicle accident involving an RTA coach. Anderson continued driving rather than stopping to provide assistance to injured passengers. 
  • On August 5, 2016, Anderson received a coaching for allowing a person to ride without proof of payment purchase or validation of fare and failing to take any enforcement action.
  • On August 5, 2016, Anderson received a First Written Warning for a disruptive, disrespectful and unprofessional outburst directed at Anderson’s supervising officer during the Republican National Convention. He yelled, among other things, “You disgust me. The very thought of you is disgusting to me and your presence sickens me.” 
  • On January 25, 2017, Anderson received a coaching for failing to address the resistive and disorderly behavior of a fare violater at the Tower City Rapid Station.
  • On April 12, 2017, Anderson received a coaching for failing to attend to scheduled court appearances. 
  • On May 30, 2017, Anderson received another First Written Reminder for violation of Employee Performance Code for failing to maintain control of a suspect following an investigative detention. 
  • On June 13, 2017, Anderson was charged with multiple misdemeanors following an off-duty incident with his girlfriend during which he allegedly assaulted her while he had his loaded service weapon unsecured in their hotel room.

Based on this history, the court had little difficulty dismissing Anderson’s claims:

Plaintiff was issued three (3) First Written Warnings and (2) two non-disciplinary coachings, each based on a particular circumstance of Plaintiff’s problematic or violative conduct. Plaintiff provides no direct evidence to support a finding that his discipline or termination were made because of his race. Plaintiff also fails to demonstrate how any similarly situated employee received more favorable treatment. The record does however support a finding that GCRTA’s actions against Plaintiff were made for legitimate, non-discriminatory reasons following Plaintiff’s unlawful conduct the morning of May 26, 2017 at the Double Tree Hotel.

This employer gave this employee a very long leash before ultimately terminating his employment. Your leash may not, and likely need not, be this long. However, no matter the length of your leash, you must ensure it's documented and communicated to the employee each step of the way. Otherwise, you are asking for a lawsuit and issues in said lawsuit post-termination.