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In the June 16, 2003 issue
of San Diego Business Journal, the
newspaper featured an article on tips for
employers when terminating employees. The
article was written by Lois
Kosch of Wilson, Petty, Kosmo
& Turner. The full text of the
article appears below:
SPECIAL REPORT: Human Resources
By Lois
M. Kosch
Informing an employee that
he or she is being let go is perhaps the task
most dreaded by a business owner or manager.
Whether the reason is poor performance or
simple downsizing, the prospect of terminating
an employee can be uncomfortable on a number
of levels.
In addition to actually
informing the employee of the termination,
an owner or manager often worries whether
the employee will attempt to pursue some sort
of discrimination or wrongful termination
claim. While there is no way to guarantee
that an employee won’t pursue a claim,
there are steps an employer can take to either
reduce the likelihood of a lawsuit or to position
itself for a strong defense if one is pursued.
• Ensure your company
has good policies and procedures in place.
All employees should acknowledge that they
are employed “at will” and can
be terminated at any time for any reason,
without notice.
Conduct regular performance
evaluations and ensure that they accurately
reflect the quality of the employee’s
performance. Often, in an attempt to avoid
the need to criticize employees, managers
overrate subordinates or fail to note areas
of weakness. This can make it more difficult
to justify a performance-based termination
later on.
• Consult your policies
and practices before making a decision to
terminate to ensure they have been followed.
Some employers have either written policies
or a standard of conduct that implies that
“good cause” is required before
an employee is let go for a disciplinary issue
or for poor performance.
If your company has such
a policy or practice ensure that the requisite
good cause exists.
• Do you have the
documentation you need to show justification
for a termination? If an employee has a history
of poor performance or disciplinary issues
(such as chronic tardiness, absenteeism, insubordination,
conflict with co-workers) those issues should
be documented as they occur.
Employees should be counseled
if they are not meeting the standards expected
of them and told specifically what is expected
in order to bring performance to an acceptable
level. They should sign off on documentation
of the performance issues so that they cannot
later claim that they were not informed of
performance deficiencies. The reasons for
all termination decisions should be well documented
and should not come as a surprise to the employee.
• While "at will"
employees may be terminated for any reason,
they cannot be terminated for an illegal reason.
Ensure a termination decision is not based
on, or motivated by an employee’s race,
religion, national origin, sex, sexual orientation,
veteran status, disability (mental or physical),
pregnancy or marital status.
Employment discrimination is often very subtle.
If the employee falls into one of these protected
categories, ensure that he or she is not being
treated differently than others with the same
or similar performance deficiencies. If an
employee’s poor performance is the result
of a disability, has your company engaged
in good faith in an interactive process to
attempt to accommodate the employee’s
disability?
• Ensure that the
decision to terminate is not in retaliation
for protected conduct. Be especially careful
of decisions to terminate employees who have
brought complaints of discrimination or harassment,
who have made complaints of the employer’s
illegal activity to government authorities,
who have filed or stated an intention to file
a workers’ compensation claim, who have
testified on behalf of co-workers who filed
complaints against the company, who have unpopular
political views and others tagged as “troublemakers”
by management.
• Consider whether
the company may be exposed to liability if
it does not terminate an employee. For instance,
an employer may have an obligation to terminate
an employee who has sexually harassed co-workers
or subordinates.
Similarly, it needs to consider
whether an employee with poor job skills or
substance abuse problems puts co-workers,
clients or patients at risk.
• For some terminations,
an employer may consider providing the employee
with severance pay in exchange for a release
of claims. If there is a particular concern
that an employee would or could bring a claim
(whether valid), obtaining a release is good
way to drastically reduce and probably eliminate
the risk of litigation because the employee
is essentially waiving all claims against
the company in exchange for severance pay.
• Consider whether
the employee to be terminated has any history
of or tendency toward violence, either toward
himself or others, or history of mental illness
such as depression that may be exacerbated
by the termination. In these circumstances
the employer may consult with psychologists
or experts in workplace violence to ensure
they take appropriate steps to ensure the
safety of both the terminated employee and
the rest of the work force.
• Treat terminated
employees with compassion and respect. Avoid
having a manager or security guard escort
them to clean out their desks or lockers and
then escort them from the building. Doing
so can make an employee feel like a criminal
and should only be done under circumstances
that strictly warrant it. Similarly, avoid
terminations on Friday afternoons. Mid-week
terminations allow the employee to immediately
take steps to move forward, such a filing
an unemployment claim. Employees fired on
Fridays may ruminate over the weekend and
build up hostility and resentment, which will
only encourage negative feelings toward the
former employer and escalate feelings of depression
or hopelessness over the job loss.
• Develop a protocol
for handling requests for references on former
employees. Forward all such inquiries to one
person or department to ensure consistency
of responses and to prevent managers from
inadvertently making statements that provide
the former employee with a claim against the
company. Providing inaccurate positive recommendations
may make the company liable to subsequent
employers who relied on those statements.
Employees in California
enjoy extensive protection under the law and
are often litigious. Employers are advised
to consult an experienced employment attorney
before letting someone go to ensure they are
well positioned to either avoid or successfully
defend claims brought by former employees.
Kosch is a partner with
Wilson Petty Kosmo & Turner LLP in San
Diego.
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For more on this article
and others, please visit San Diego Business
Journal's website at www.sdbj.com.
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