Though every employer knows – or should know – the rules for safe firing, mistakes still happen when it comes to showing an employee the door, says Peter Golden, a business and employment law attorney with The Golden Law Firm in Atlanta.
In his own practice, he finds that employers most often fall down on three points: missed documentation, unfair employee comparisons, and skipping steps in progressive discipline.
1. Anything in writing helps
Lack of documentation heads the list.
It comes up over and over again. Despite all the warnings, employers still fail to document poor performance.
“They talk to employees, but they don’t write it down,” and most of the time, they say skipped the documentation because they got busy and didn’t have time to do it.
But the documentation doesn’t have to be anything formal or anything that takes time, he says. It’s possible to get by with just a short note that there was a conversation with the employee on such-and-such a date about such-and-such performance issue.
He gives the example of “Met with Employee A today regarding continued failure to examine documents for errors. Employee A acknowledged errors and said he will make improvements.”
Date it, sign it, and file it.
That may be skimpy, he says, but from a legal standpoint, “some sort of documentation is better than nothing.” Just having that little bit in writing can go a long way in keeping the firm safe, because most cases hinge on the claim that the employee didn’t know there was a performance problem. Those few words are proof enough that the employee knew full well what was going on.
What’s more, that entry shows the problem was significant. Without it, the question invariably arises: “If this person did such a bad job, why didn’t you put it on paper?”
2. Comparing apples and oranges
Next on the list is the failure to make a fair comparison between the discipline being handed out now and what’s been handed out in similar situations.
To keep safe, Golden’s advice is to ask two questions before taking any action against a staffer.
- Can I show that I’ve been consistent with other employees who have done something similar?
If the answer is no, there’s an easy argument that the termination was discriminatory. That applies to both performance issues and misconduct where someone is fired on the spot.
- Would I fire my star performer for doing this same thing?
That’s an essential question when the issue is lying or misconduct, he says. It’s tempting to give the good performers or money makers a second chance, but not so tempting when the staffer is mediocre.
Things have to be equal. If today’s firing is for lying, and if a top money maker lied in the past but wasn’t fired, the Equal Employment Opportunity Commission isn’t going to look favorably at the termination, and neither is a jury.
Beyond equality, he says, look for any reason the termination could be considered discriminatory. If the current employee is a woman and four months from now, the firm gives a second chance to a man in the same situation, gender discrimination could become an issue.
And don’t think the terminated employee won’t find out about the imbalance of discipline. That employee will have friends still on board, and word will get out.
What’s more, imbalance is always a morale killer, because the other staff see it as unfair.
3. Step skipping
Third on the list is not following the office’s own progressive discipline policy.
Many policies carry a provision that the employer has the right to skip any of the steps. And while that does provide a little leeway, it’s not bulletproof, Golden says.
When the reason for firing is no more than inadequate performance, neither the EEOPC nor a jury is eager to excuse the fact “that the employer skipped over step two or step three of the policy without any substantial justification.”
Skipping often happens with new employees. The performance isn’t up to par and the employer sees it has been an issue from the start “and doesn’t want to wait around” going through all the steps.
The policy may allow for that, but the EEOC is going to ask “why did you skip over that?”
Weigh the convenience against the time and cost of defending a wrongful termination claim, he says.
The office may have done “absolutely nothing wrong” yet still get tangled up in litigation that lasts for months and attorney’s fees that run into thousands of dollars. Even if the firm wins, it looses, he says, because for a small practice “that can destroy an entire year’s worth of profits.”
Progressive discipline is worth following in every situation “because it gives structure to decisions.” When it results in termination, the termination is warranted and defendable. The employer acts prudently, and the employee understands the entire process – and so does the EEOC and so does a jury.
He adds that progressive discipline is an almost ironclad defense. One of the first questions the EEOC looks at in a wrongful termination claim is whether there was a progressive discipline policy and whether the employer followed it. If so, the EEOC usually bows out right there, and the matter is dropped.
The essentials of progression
What should a progressive discipline policy include?
Golden recommends these four steps:
• Verbal warning. Tell the staffer
- – what is wrong
- – that the conversation is a verbal warning
- – that if the performance doesn’t improve, there will be a written warning.
Document the warning and the date.
The staffer does not need to sign anything.
• First written warning. Include here
- – the specific performance or misconduct
- – the dates it has occurred
- – proof of what has happened, such as copies of timesheets showing the tardiness, an error filled work product, or copies of written complaints from the clients
- – that there has been a verbal warning
- – that failure to improve will result in a final written warning
The employee has to sign the warning.
• Final written warning.
- – Reiterate the written warning.
- – Say that unless there is “immediate and sustained improvement,” the employee will be fired.
The employee has to sign the warning.
Many employers skip that final warning, Golden says. But it’s necessary, because a common complaint is “Yes, I got a written warning, but I had no idea I was going to be terminated.” And those are the employees who tend to file claims whereas people who know it’s coming generally don’t file them.
• Termination letter
- – Summarize what caused the termination.
- – Describe the verbal and written warnings.
- – Give copies of the time cards or work products shown to the employee earlier.
Write that letter “as if it were a jury exhibit.” It has to be “clear and unambiguous” on why the firm fired that person.
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