Hot Tip for October 2017

HR Hot Tip for October 2017


5 Sins of Termination
Begging for a lawsuit?

Continued from 9/1/17 issue

Terminations are never easy for anyone, but since they plant the seeds of many lawsuits, it’s worth learning how to do them right. Handling them carefully can save cash, calm frayed nerves, extra strength aspirin and maintain morale and productivity. Don’t be the company mentioned on the nightly news along with these words “Wrongful Termination”.

Sin #6 – Terminating Without a Reason on the Basis of “At-Will”

It’s true that unless there’s a formal contract of some kind, most employees are employees at will, and that means they can be terminated at any time for any reason or for no reason. And the flip side is that they can leave at any time.
But here’s a news flash—people don’t like to be fired, and they’re not going to blame themselves. They typically have no reason to think their performance is subpar, so the reason must be because of their protected status—that is, their race, sex, age, or disability. Now your company is in trouble; you have to begin your defence by proving that, yes, your managers are so stupid that they fire employees for no reason. And then you have to explain why “no reason” is more likely than the illegal reason. It’s not going to go well.

Sin #7 – Terminating Without Proper Documentation

The trouble with this scenario—terminating with no backup evidence of poor performance—is that there is usually documentation that shows good performance. Typically, since the person hasn’t been terminated before, his or her performance reviews read “good” or “satisfactory.”
Now, this is like the “offering a false reason” problem—you are essentially saying to the jury, “Trust me when I say that I lied on the performance reviews.”

Sin #8 – Not Giving the Employee a Chance to Explain

True, there’s no legal requirement to give employees a chance to explain, but juries will view it as a basic element of fairness. In a situation like the one in the scenario, the jury’s sympathies are not going to be with the manager.

Sin #9 – Terminating on Your Own

It’s generally better to have a group involved in deciding on a termination, for a number of reasons:
There may be other people on the team (like the HR manager) in a better position to judge the appropriateness of the termination.
A group decision shows that careful consideration was given to the matter.
Since litigation can go on for years, and since managers can come and go, it’s in the organization’s best interest to have several managers familiar with the case.

Sin #10 – Terminating Without Preparation

Let’s face it, terminations prompt many lawsuits, and experience suggests that the decision of whether to sue is often influenced by how the person was treated during the termination. So take the time to be prepared. Know what you are going to say. This enables whoever is handling the termination to better control the conversation and keep it from becoming too long, too emotional, or unclear in delivery and message. Also determine who is going to do what, what documents need to be available, what procedures need to be followed, what references will be given, final pay, and so on.
OK, that’s our 10 sins of termination. Terminations—just one more challenge.
Even the savviest practitioners get tripped up, and the law’s complex requirements can easily land you and your company on the wrong side of a lawsuit or in a Department of Labor (DOL) investigation.

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