Terminations: Know what you are doing
Involuntary terminations are an unpleasant, but necessary part of every manager's job. If poor performers or disruptive employees are allowed to keep working, productivity and efficiency are bound to suffer. However, mishandled terminations can lower employee morale and lead to lawsuits. Terminating an employee can put you at legal risk for liability. Some examples could include:
Discrimination Claims
Employees could allege that their termination was illegal discrimination based upon their status as members of a protected class.
Many successful claims involve managers who made inappropriate comments before terminating protected-class employees, or who treated them more harshly than others when taking disciplinary action. For example, one court case determined that age may have been a substantial motivating factor in the termination of a 56-year old audit consultant. His supervisor told him that management preferred younger single people who could work unlimited hours and then stated that the employee would not be happy at the company in the future because of his age.
Defamation
Discharged employees also may claim that their former employer defamed them by making false, disparaging statements about them to co-workers or others. These claims can also arise from an unfavourable post-employment reference comment. Employees even may allege that the employer's actions at the time of discharge, rather than what was said, were defamatory.
Intentional Infliction of Emotional Distress
Employees may allege that they were treated in a manner that was intended to cause them emotional distress. A discharged employee generally may need to show all of the following elements in order to succeed in this type of claim: (1) extreme and outrageous conduct by the employer or its representatives; (2) the intent to cause emotional distress, or a reckless disregard for the fact that the conduct would cause emotional distress; and (3) an actual resulting severe or extreme emotional distress.
In another case, the court determined an employer was liable for intentional infliction of emotional distress because of its supervisors' inappropriate behaviour. Supervisors repeatedly called the employee vulgar names and verbally harassed him, spat on him, tried to hit him, called him at home to tell him to resign, and, after he was discharged, left a taunting message on his answering machine.
Breach of Contract
Discharged employees also may sue for breach of contract by alleging that they were terminated for reasons outside the terms of an employment contract. Furthermore, poorly worded or constructed personnel policies and employee handbooks may be considered legally enforceable employment contracts that limit your right to discharge employees.
Retaliatory Discharge
Retaliatory discharge is another claim terminated employees may allege if their termination is for exercising some legal right. Examples are termination for filing a discrimination claim, reporting unlawful employment practices, or participating in an investigation, proceeding, or hearing.
Four Steps to Prevent Termination Lawsuits
Clearly, a "bad" termination can leave your organisation exposed. However, you can make termination decisions with greater confidence and reduce your legal exposure by following a consistent process that includes the following four steps:
- Follow your policies, particularly your progressive discipline policy, and have a business-related reason to justify any deviations. Be consistent in how you treat employees.
- Investigate thoroughly, especially in cases of misconduct, such as work rule violations, harassment, or theft.
- Document the reasons for termination and include in the employee's personnel file records that accurately support that reason, such as performance appraisals and counselling memos.
- Limit discussions about the termination to those persons who have a legitimate business need to know about it to prevent claims of defamation, invasion of privacy, or other personal injury.
Adapted from Great Lakes HR Now and CBS Radio Inc. Used by permission. All Rights Reserved.
