Even the appearance of wrongdoing or the perception of discrimination may increase the likelihood of a lawsuit. Since it is very expensive to defend any lawsuit, carefully review all termination decisions before the fact for any perception or reality of wrongdoing. It is always cheaper for the company to review before the fact than to defend actions after they have occurred.

Key questions. The following questions are meant to be a guide. If the answer to the question is unknown or of concern to the review, this review is the time to gather additional information. These questions serve as a “last chance” audit prior to termination: 

  • Could the discharge be perceived as discriminatory? 
  • How do you know that the termination does not discriminate on the basis of one of the following protected categories? 
    • Race 
    • Sex 
    • Religion 
    • Age 
    • Disability 
    • National origin or ancestry 
    • Veteran/military status 
  • Is long service used as a subterfuge for age discrimination? 
  • Does the discharge retaliate against an employee for the exercise of protected activity under the NLRA, such as seeking to join a union or complaining about management policy? 
  • Does the discharge violate provisions of a collective bargaining agreement? 
  • Does the termination interfere with the right to be a juror? 
  • Has the employee been called as a witness or recently been on jury duty? 
  • Is the discharge to be handled in a manner that infringes on employee privacy rights? 
  • Does the termination violate applicable state law exceptions to the employment-at-will doctrine such as implied contract, public policy or covenant of good faith? 
  • Has the employee been promised any terms or conditions of employment other than employment-at-will by any individual in a position of authority? 
  • Is the employee about to vest in any benefit? 
  • Is the employee eligible for a future payment such as a commission or bonus? 
  • Is the discharge in retaliation for a garnishment action against the employee? 
  • Have performance evaluations been conducted properly? 
  • Is an employee who has consistently been rated as a good performer being fired suddenly for poor performance? 
  • Has the employee recently been promoted, given a raise or received a company commendation or award? 
  • Have all relevant policies been followed? 
  • Is there a written policy authorizing termination for this violation?
  • Did the employee know of the policy? 
  • Is the basis used to justify the termination objective and not dependent upon suspicion or “second-hand” information? 
  • Will the termination come as a surprise to the employee? 
  • Did the employee have a copy of the policy? 
  • Has progressive discipline been used? 
  • Has prior discipline been documented? 
  • Did the employee have an opportunity and a reasonable timeframe to modify his or her behavior? 
  • Is there a solid business reason for the policy or rule that is the basis for the termination? 
  • Have company complaint procedures been utilized? 
  • Is the discharge in retaliation for whistle blowing activity? 
  • Have others with the same or similar fact circumstances been terminated? 
  • Was the infraction investigated fully? 
  • Is the termination action a direct result of the investigation or discipline? 
  • Is the termination a result of failing a test?
  • Is the test valid?  Is the termination recommendation timely? 
  • Did the employee have a reason for the action? 
  • Has the employee had medical treatment recently? 
  • Has the employee applied for or returned from a leave of absence recently? 
  • Is there any reason to believe the employee may have a disability that has prohibited him or her from performing satisfactorily? 
  • Is the employee pregnant? 
  • Has the employee filed a charge or a complaint against the company or a company representative recently? 
  • Has the employee engaged in any political activities recently? 
  • Has the employee requested or returned from a military leave in the last year? 
  • Does the termination arise out of an employee’s refusal to take an action because the employee believes the action to be against a law? 
  • Is the termination a result of the employee’s conduct outside of work? 
  • Are there any extenuating circumstances such as personal motives, grudges, or other reasons that contribute to the decision to terminate? 
  • Would the termination decision be any different if you knew the “facts” were to be reported in the local media?

If the answer to any of these questions causes concern or is unknown, now is the time to answer the question to the company’s satisfaction.

Source CCH