One of the most frequent questions an employment lawyer gets is the inevitable call from a client that says “we’re ready to let somebody go,” or “we’ve made the decision to downsize,” or “I’ve been having a problem with an employee for several years and I just can’t live with it anymore”. There is one of two things that that client is hoping to accomplish. They’re hoping to avoid litigation altogether or if litigation is inevitable, they’re looking to minimize the risk of that litigation. Here are a few tips that you can follow from hiring to termination to make sure that exposure is limited.
1. Know Who You Are Hiring
In regards to the hiring process, the best thing an employer can do to avoid problems down the road, is to hire good people. It’s an easy thing to say, however it’s not always an easy thing to do. Not every employer is able to forecast the problems that an employee may encounter, both in and out of the workplace, that is going to affect their ability to perform in the workplace. First, vet your candidates well. Make sure you call those references they give you, don’t let them just sit in a file. Secondly, hire people that are going to succeed in the setting you’re going to put them in. Don’t just look at the resume. Don’t just look at their past job experience. What you want to do is anticipate what they’re going to be doing on a day-to-day basis, and form your interview questions accordingly. Have they supervised people before? Have they worked in group settings before, if they’re going to work in group settings for you. Simple questions like that in an interview process are going to avoid problems down the road that could lead to a nasty termination.
2. Day-to-Day Consistency in Documentation
The best defense to any wrongful termination suit is a well-documented story that shows, yes, this person had problems; yes, we tried to help this person but unfortunately we just couldn’t make it work. The key to that is documentation of personnel files to make sure you show that you completed a thorough investigation of any problems; that you documented all of those problems and that you showed, most importantly, what you did to try to alleviate those problems throughout the employment.
The next step in the day-to-day supervision is a good evaluation of that employee throughout their employment. There’s nothing worse as an employment lawyer to have a client come to you and say “I’ve had problems with this particular employee for years”, but the personnel file shows review after review that this was a good employee, he/she was doing a great job. The key is three things:
- Have a standardized review form
- Make sure that supervisor is filling out that standardized review form and doing that in a timely fashion
- Make sure they’re giving objective and honest evaluations of the employee
In the best interest of your company and the employee, it’s best that the supervisor do an honest, objective and thorough completion of that review process. That’s not always an easy thing to do, but it’s essential to have proper documentation of a lawsuit that may come down the pike.
3. Consider the Impact of Downsizing
If you’ve made the decision that you need to downsize, take a step back and perform an analysis of the downsize.
- Are there quantifiable factors that you base your decision on? (i.e. seniority, performance data)
- Does the affect of the downsizing disproportionately affect any particular class? (i.e. people over 40, females and minorities)
- Understand the effect of the decision to downsize
These factors will go a long way towards avoiding any litigation in the future.
4. Be Prepared for the Termination
Last, you’ve made that difficult decision to terminate an employee. What can you do to make sure that meeting goes the way you want it to? The key is to be prepared for the termination. Make sure you have more than one person at the termination meeting and make sure that you clearly and concisely let the employee know each reason why he/she is being let go. Be prepared to offer them what they’re entitled to on their way out the door, whether that is PTO, sick days or vacation days. Last, let the employee talk during the termination meeting. This is going to be a tough day for them. Let them get their frustrations out and let them tell you from their perspective what they think went wrong with the relationship. Make sure you document that meeting, not only so you know what’s going to be said in the future, but maybe it could avoid a future problem with another employee down the line.
Mark Malloy is a shareholder at Meissner Tierney Fisher & Nichols S.C., where he is a trial lawyer who practices in the area of commercial litigation with an emphasis in employment law. You can read Mark’s full bio by clicking here.
