Tom Stilp JD, MBA/MM, LLM, MSC
When people get fired, employers get sued. Firings are the single most common basis for employment lawsuits.
Following the Golden Rule to “treat people as you expect to be treated” during terminations is a good start, but not all that is needed. Three simple rules will help keep you out of trouble and let your business enjoy a good reputation.
1. Incomplete and Inconsistent Information
When you have reviews, be honest, complete and consistent. A great source for lawsuits comes from the employer’s own files, where an employee is given positive reviews because people want to be “nice,” and omit problems that need to be addressed. “If there were not performance problems,” a judge will ask, “why was the employee terminated?” Such inconsistency makes it much easier for the employee to point to some sort of illegal discrimination or retaliation, which must have been the “real” reason for the firing.
2. Lack of consistent discipline
Rule No. 2 follows Rule No. 1. When employees are surprised by a termination, they’re more likely to sue. Make sure supervisors provide honest, regular feedback and evaluations, and follow your progressive discipline policy.
3. Review of termination decisions
A review of termination decisions before the decision is implemented seems like common sense, but is often missing in practice. More than one person should make the decision, and if possible, seek an independent review by someone who might bring needed objectivity. If an employee is being let go for reasons other than poor performance, people expect severance pay; people expect some recognition that the door is not hitting them on the way out. Again, follow the Golden Rule.
Finally, consult with legal counsel – having seen dozens of situations, we know what works well and what may get you into trouble.
