By William J. Lynott
It’s a responsibility most dread, but almost every business owner and manager will eventually come face to face with the task of terminating an employee. Whether the termination is due to a fiscal reality that is making layoffs unavoidable or because of unacceptable employee performance, taking appropriate action—without delay—is the best strategy.
“Firing people is one of the toughest, most unpleasant things you do as an employer,” says James Walsh in his book, Rightful Termination. “Your stomach tightens and your throat gets dry as you prepare to call someone in for the meeting that begins, ‘There’s no easy way for me to do this…'”
As difficult as the task may be, fiscal reality sometimes makes employee layoffs unavoidable. When your payroll costs climb to unacceptable levels, or when an individual employee’s performance is unacceptable, it’s best to take appropriate action.
“Many owners and managers delay layoffs out of concern for their employees,” said Kerim Fidel, general counsel for the professional employer organization SOI. “This may result in deferring layoffs beyond an economically rational point.”
“Some of our clients facing the troubling possibility of employee layoffs have sought our advice and guidance in how to navigate a workforce reduction while avoiding potential legal pitfalls,” said Sandra Dickerson, president of Your People Professionals. “Each situation is unique, but if the employer follows some basic steps many problems can be avoided. “First, carefully consider whether there might be viable alternatives to a layoff. Perhaps you can find other cost cutting measures that will let you preserve your major investment in your employees. Consider the long term costs of replacing your talent investment when the economy picks up and satisfactory workers are again in short supply.”
Fidel agrees. “While layoffs are seen as a cost-cutting measure, there are significant costs associated with them,” he said. “These include potential increases in unemployment contribution rates, severance pay, and exposure to layoff-related legal action. Soft costs include loss of confidence among customers and remaining employees, and forcing talented employees to find work elsewhere, possibly with your competitors.”
Still, there are times when layoffs are the only practical alternative. “When that happens,” said Dickerson, “you must follow the most objective and uniform selection criteria possible. Be careful to ensure the layoffs will not have a disproportionate effect on employees in a protected class. Protected classes include minorities, women, older workers, and the disabled.”
Dickerson also cautions against using layoffs as an opportunity to eliminate difficult or disliked employees, “That’s the wrong approach if you want to avoid legal challenges,” she said. “Remember, unlike a termination for cause, a layoff is the elimination of a position, not a particular employee. Focus on the skills you will need to keep your business viable, and be sure to document the criteria you use to decide who stays and who goes. The size of your business may also subject you to legal notice requirements. Before you make layoff announcements, seek professional advice if you have more than a few employees.
“Lastly, be sensitive and make every effort to protect employee privacy and dignity throughout the layoff process,” Dickerson added. “Be prepared to address the increased stress levels of your remaining employees who may be assuming added responsibilities and facing their own uncertainties about what the future holds.”
Today, with the increasing risk of costly legal complications when discharging an employee, even for purely business reasons, it’s important to be aware of the legal pitfalls surrounding that task.
Every year, thousands of employers, from the largest to the smallest, are being hauled into court by former employees claiming that they were fired illegally. Many of those employees are winning substantial judgments against their former bosses.
“It costs nothing for an employee to file a charge with the EEOC or state fair employment practices agency,” cautioned Attorney James McElligott, Jr. of McGuireWoods in Richmond, Va. “State and federal agencies can investigate employers for retaliation charges based on OSHA, wage and hour, environmental, FMLA, or other violations. In addition to the expense of legal fees, employers often must spend hours trying to reconstruct and justify their actions. Moral: do it right the first time.”
What you need to be especially sensitive to is the risk of lawsuits based on some form of discrimination. “Every employee has a race, a gender, a religion,” said attorney Beth Schroeder of Silver & Freedman, Los Angeles. “So, every employee, even new and probationary ones, falls into at least one so-called ‘protected’ class.”
Here are a few suggestions that will help avoid the nightmare of a wrongful termination lawsuit:
1. Keep lines of communication open.
Many wrongful termination lawsuits have their roots in a misunderstanding on the part of the employee. Often, that misunderstanding involves the reason for the termination.
“Many employers are under the impression that the less communicated to an employee about the termination, the better. My 18 years of experience in both counseling employers and defending lawsuits suggests otherwise,” said Schroeder. “The more an employee understands about where he or she stands and the reason for the employer’s actions, the less angry, frustrated and suspicious the employee is likely to become. It is that anger, frustration, and suspicion that drives terminated employees to attorneys.”
Layoffs due solely to poor business conditions aren’t likely to be the cause of legal problems. However, it’s critically important that the employee be made aware that the separation was not due to his or her job performance.
2. Put it in writing.
Labor experts agree that careful documentation is an essential part of every employee termination, especially a termination for cause. Incidents or behavior leading up to termination for a reason should be recorded at the time of the incident, or as soon thereafter as possible. The documents should be respectful of the employee, but detailed, listing events or issues in a logical or chronological order.
“At the very least, you should put the reason for the termination in writing,” said Schroeder. The employee is likely to be emotional and upset and may not hear what you said in the termination interview. If the terminated employee goes to a lawyer, the lawyer will hear the story in the employee’s words, and will decide whether to take the case based on the employee’s description. In that case, the attorney may not hear your side of the story until after a lawsuit has been filed.”
3. Be careful of “constructive” discharges.
The courts sometimes rule that an employee was indirectly fired, known legally as a “constructive” discharge. This can happen if the employer creates a hostile or abusive work environment, places unreasonable demands on the employee, or issues a “quit or be fired” ultimatum. If a constructive discharge is ruled, the employer’s responsibilities will be the same as for a direct firing.
4. Conduct regular employee evaluations.
Under the law, employees are entitled to be kept informed of how well they are meeting expectations. Failure to meet this requirement may not be of any consequence unless and until a terminated employee files a lawsuit that claims no attempt was made to inform him or her of dissatisfaction.
Evaluations do not have to be elaborate or follow any specific format, but it’s always best to put them in writing, even if it’s only a short paragraph or two.
Attorney McElligott advised, “Your employees are entitled to know whether or not their performance meets your expectations. In this regard, it helps to make a written record, for future reference if the need arises. Always be consistent in evaluating and disciplining your employees, and be sure to review previous evaluations and disciplinary actions if any has taken place.”
Many HR professionals recommend that employees be allowed to review their written evaluations. Then, ask them to initial the document. If the employee declines, it should be indicated on the record.
5. Deal promptly with performance problems.
Because the task can be so unpleasant, many business owners find reasons to delay firing a problem employee: Perhaps the employee will improve. Perhaps I’m being too hasty. Perhaps living with the problem is the lesser of two evils.
If the above guidelines have been followed, and there is confidence that a termination is justified, delaying the action is probably not in the company’s best interest.
“Not firing a problem worker is often the worst thing you can do,” said Walsh. “It keeps the problem worker around to create more trouble, making a bad situation worse. That’s not fair to you or to your other employees.”
McElligott goes further. “Don’t procrastinate or wait for the next evaluation,” he said. “Do it now!”
Employee layoffs, even those that are the direct result of poor business conditions hold the potential for both legal and morale problems. Following these ground rules will help to lessen the chances for costly complications.
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