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November 20, 2016
The employer-employee relationship is a power dynamic that can often involve emotions. When an employee is terminated it is important for cooler heads to prevail in order to avoid litigation. Below, are five common employer mistakes (out of many!) to avoid if you want the separation to go smoothly as possible.Mistake #1: Not Following Policies Established in Your Employee Handbook
An easy way to get yourself into litigation trouble is not following through on the policies and procedures outlined in the employee handbook. It may not be a contract, and it might say you have the authority to escalate proceedings at your discretion, but if your handbook outlines progressive discipline and you jump straight to termination— there should be some justification.
It is much better for you to know your policies and follow them. Only escalate if absolutely necessary. This is especially important when you have a larger business. You need to show consistent practices across all your employees when handling problems. If you give one employee a slap on the wrist but terminate another for the same behavior, you’re putting yourself in a position to be sued for discrimination.
When you do need to escalate, it’s important not to fall into the other traps outlined below.Mistake #2: Not Thoroughly Investigating an Incident Before Termination
If an incident arises between employees or between an employee and a customer, you should always do an investigation, either internally or with a neutral party in order to get all the facts. You should talk to all involved employees and anyone else who may be able to shed some light on what happened. Adding a neutral investigator to the mix could be helpful especially in cases where two or more employees are having problems with each other.
The purpose of an investigation is to make sure you’re disciplining the correct employees for the correct reasons. But perhaps more importantly, courts will rarely second-guess the decision of an investigation, as long as there was an investigation. So if an investigation reveals bad behavior by an employee and you terminate, they might sue you for discrimination. However, a judge (or jury) is much more likely to back up your decision if you can show a thorough investigation was conducted.Mistake #3: Not Giving a Reason for Termination or Not Being Clear About the Reason for Termination
Another important way to avoid a charge of discrimination is to be clear about why you’re terminating your employee. It is important that the reason for termination is clear, concise, and consistent. If you fire your employee in a rash of anger, or you give multiple reasons at different meetings and in the termination letter, or if you don’t give a reason at all, a former employee is left with questions and could come back with a lawsuit.
Inconsistent reasons or no reason for termination makes people wonder about the real reason for termination. In discrimination law, it’s important to consider whether the employer (you) has a legitimate, nondiscriminatory reason for termination. The clearer and the more consistent your reason for termination, the more likely a court will agree with you.Mistake #4: Not Fully Documenting all Performance Issues
If you have problem employee, you need to document it. This could mean giving accurate performance reviews or writing up any incident that happens. You need to create a paper trail. If you don’t have a paper trail, you might find yourself in a lawsuit claiming someone who has glowing performance evaluations was somehow a terrible employee.
While it can be a hassle to have a formal disciplinary proceeding, it’s important. You need to make sure that as issues come up with an employee, they are fully and clearly documented. If your employee handbook has a progressive discipline procedure, use it and document each step. Nothing will help your case more than having months or years of documentation to show the performance issues you cited in your termination notice.Mistake #5: Not Taking the Process Seriously or Trying to Minimize the Issues
If you don’t feel comfortable in awkward or confrontational situations, you need to fight through it. Minimizing the seriousness of the meeting, making jokes, or apologizing to your employee as you discipline them or fire them can do more harm than good.
If you’re not terminating your employee, this levity could make it seem like you’re not serious. Offending behavior could continue and the issue could come up again if the next level of discipline is more severe and the employee is surprised by the punishment.
If you are terminating your employee, jokes or apologies could be interpreted incorrectly and lead to a more disgruntled employee who takes the jokes as callousness or the apology as a sign that he or she is being railroaded. You should let your employee leave with dignity and respect, and part of that is taking the matter seriously and not apologizing for your decision.
Certainly these are not the only mistakes employers can make and there’s nothing you can do to 100% immunize your business from being sued. All you can do is try your best, treat your employees with dignity, and keep a clear and accurate record of every incident.