|
EMPLOYEE DISCIPLINE AND TERMINATION
Introduction:
Employee discipline and
termination are never easy or pleasant tasks for the Employer, however
the manner in which they are handled may greatly impact whether the
Employee seeks legal redress against the Employer, and if so, the
success of any such action. Even non-meritorious claims by disgruntled
former Employees require costly legal defense and cause disruption to
the Employer's business.
Although termination
works a hardship on almost all employees, statistics indicate that the
Employee who believes he or she was treated unfairly by the Employer is
much more likely to sue or file a claim for wrongful discharge, whether
or not he or she has viable grounds for such a claim. It is also
important to remember, that if such a claim reaches a jury, that jury
will, more likely than not, be populated by employees or former
employees than by human resource managers. In the final analysis, the
jury will base its determination on whether the Employee was treated
fairly by the Employer.
By consistently enforcing
its personnel policies and procedures and by following a few
precautionary procedures, the Employer can reduce its exposure to
employment claims by employees and place itself in the most defensible
position possible when claims are brought against the Employer.
PROCEDURES AND RULES
FOR TERMINATION
The most basic rule is
that, unless the Employer consists of one individual, no employment
decision should be made by any one individual. In a large organization,
all terminations should be reviewed objectively by a department head or
Human Resources manager who does not have a direct reporting
relationship with the employee whose employment is being terminated. In
a smaller organization, at least one other manager should review the
grounds for termination and approve the termination decision.
The following is a
checklist of factors which affect the termination decision. This list is
by no means exhaustive and is intended as a guide which should be
reviewed by the Employer and consulted whenever a termination is being
considered.
WHERE THE DECISION
TO TERMINATE IS PERFORMANCE BASED
-
Did the Employee have
adequate notice of the performance standards expected of him or her?
-
Was the employee
counseled on his or her performance deficiencies and given an
adequate opportunity to improve prior to termination?
-
If the performance
deficiency was claimed to be related to a disability, were steps
taken to reasonably accommodate the Employee?
-
Does the file
documentation adequately support the performance deficiencies and
counseling attempts?
-
Are there written
statements and/or credible witnesses to support the Employer's
position?
-
Does the Employee's
prior disciplinary record support termination at this time?
-
Is there progressive
discipline, if appropriate, documented in the file?
-
Is the Employee's
prior misconduct and or failure to respond to corrective action
documented in the file?
-
Can the Employer
demonstrate that its treatment of this Employer is consistent with
its treatment of previous employees who were similarly situated?
-
Is the decision to
terminate timely in relation to the triggering event and resulting
investigation?
WHERE THE DECISION
TO TERMINATE IS CONDUCT BASED
-
Did the Employee have
adequate notice of the standard of conduct or policy that was
violated?
-
Did the Employee
receive all warning, written and oral, required by Employer's
policies and procedures?
-
Is the rule, policy
or standard of conduct violated reasonably related to the orderly
safe and efficient operation of the business?
-
Were all of the
Employer's policies and procedures followed prior to the decision to
terminate?
-
Is probation or
suspension required before termination?
-
Is a final warning
appropriate?
-
Would transfer of the
employee or a leave of absence alleviate the problem?
-
Did the Employer
conduct a thorough and neutral investigation of all events leading
up to the decision to terminate?
-
Did the investigation
include the Employee's version of events surrounding the alleged
misconduct?
-
Are there any
extenuating circumstances justifying a lesser penalty?
-
Is the Employer's
treatment of this Employee consistent with the Employer's treatment
of other Employees who engaged in similar misconduct or policy
violation?
-
If this is a first
offense termination, were other employees who engaged in the same or
similar conduct terminated on the first offense?
-
If the alleged
misconduct is claimed to be related to the employee's religious
beliefs or a claimed disability, were reasonable steps taken to
reasonably accommodate the employee?
IN THE CASE OF ALL
TERMINATIONS
-
Have all of the
reasons for the decision to terminate been identified and
articulated?
-
How long has the
Employee worked for the Employer?
-
What is the
Employee's age?
-
Are pension rights or
stock options due to vest shortly?
-
Is the Employee a
member of a protected class under state or federal
anti-discrimination laws?
-
Racial or Ethnic
Minority.
-
Female.
-
Female in a job
category traditionally dominated by men, e.g. Firefighter.
-
Over 40 yrs old.
-
Handicapped or
Disabled.
-
Pregnant or pregnant
with a pregnancy related medical condition.
-
Suffered a work
related injury.
-
Claims performance
problems attributable to drug or alcohol abuse.
-
Has the Employee
Engaged in Protective Activities while employed?
-
Filed a Worker's
Compensation Claim or testified concerning another employee's claim.
-
Made a Complaint of
Sexual Harassment or Discrimination.
-
Made a Complaint of
Racial Harassment or Discrimination.
-
Made Complaints or
charges of Unsafe Work Conditions.
-
Made complaint of
Unfair Labor Practices.
-
Made complaint of
other Illegal Activity or Practices by the Employer.
-
Served on a jury or
engaged in military service.
-
If the stated reasons
for termination are based on adverse business conditions, can the
Employer establish by credible evidence that this particular
employee was not selected for termination on a pretext.
If examination of a
termination decision in light of the foregoing considerations reveals
fairness flaws or other risk factors, you should contact counsel to
discuss other alternatives or ways in which you may reduce the risk
associated with the contemplated termination. |
