Employment & Labor Insider
Constangy, Brooks, Smith & Prophete, LLP
So you think you’re ready to terminate an employee. Are you really?
No. 1. Is the employee covered by a collective bargaining agreement? If so, make sure that whatever you do is consistent with the CBA.
No. 2. Is there a relevant employment policy? Have you read it lately? If the termination will be for attendance, have you reviewed your attendance policy? If for poor performance, have you reviewed your policies dealing with progressive discipline and performance improvement plans? If for misconduct, does your policy say that the alleged misconduct should result in termination?
No. 3. Is there a “past practice” for handling the issue that you are encountering with this employee? Are the options you are considering consistent with that practice?
No. 4. Do your CBA, your policies, or your past practices contain any exceptions? If so, might any of them apply in this situation?
No. 5. Has your employee been told about the attendance, performance, and behavior standards that apply, either through CBAs, policies, training, or otherwise?
No. 6. If the termination is for attendance, performance, or an accumulation of issues that would be minor if considered by themselves, has the employee received progressive warnings?
No. 7. If the termination is for severe misconduct, is it specifically addressed in a CBA, policy, or training (for example, a list of violations for which employees are normally fired on first offense, or harassment training)? If not, is the behavior so horrendous that anyone in his right mind would know he’d be fired?“O great Zoltar, can we fire this employee and not get sued?”
No. 8. Will the employee be blindsided by this termination, or will she have seen it coming? If the employee will be blindsided, are you satisfied that (a) there was a very good reason for keeping it secret (for example, you suspected her of embezzlement and didn’t want to give her a chance to cover her tracks), or (b) her surprise is not reasonable for someone in her position because you, e.g., put her on a final warning a month ago for doing exactly the same thing?
No. 9. Have the issues with this employee been documented? Are you comfortable that, in the event that you get an administrative charge or lawsuit, you can defend your decision?
No. 10. In the case of misconduct, do you have a strong objective basis for believing that the misconduct was committed, and was committed by this particular employee? Can you prove that to a government agency or in a court of law?
No. 11. Have you given the employee a chance to tell his side of the story? If he denies or disputes it, have you considered that with an open mind before concluding that he was “guilty”? Is a government agency or a jury likely to agree with you that his defense is not valid?
No. 12. Have you considered the possibility that race, sex, national origin, religion, age, or disability, or any other legally protected status, may have played a role in the decision? (And remember that “reverse discrimination” is against the law, too.) If the employee can’t meet your standards because of a disability, a pregnancy-related condition, or her religious beliefs, have you attempted reasonable accommodation in good faith? Can you satisfy a government agency or a court that the employee’s “protected status” had nothing to do with the decision?
No. 13. Has the employee engaged in any “legally protected activity” in the past year? For example, filing a workers’ compensation claim, asking to take time off under the Family and Medical Leave Act or for military or reserve duty, asking for a reasonable accommodation, making a safety complaint, filing an EEOC charge, making an internal complaint of discrimination or harassment, recruiting co-workers to support a union campaign, complaining about allegedly dishonest business practices in the company (and much more)? Will you be able to convince a government agency or a court that protected activity played no role in your decision?
No. 14. Do you, the managers, or the supervisors involved in the termination have an axe to grind with this employee? Is there anything that would affect your ability to make a decision that is just?
No. 15. Is “the heat of passion” involved? If the employee did something to infuriate you (or her supervisors or managers), did you give yourselves a chance to calm down before you started making decisions?
No. 16. Even if no “legal” issues are involved, is there anything about this termination that doesn’t feel right to you — for any reason?
No. 17. Have you consulted with your in-house or outside employment counsel? If not, have you consulted with a seasoned and experienced HR professional, or an employers’ association? A “devil’s advocate” of any kind? Do they support the termination, or are they trying to talk you out of it? If they support it, did you give them all the relevant facts?
No. 18. If you suspect that the employee is the litigious type, have you alerted your bosses about what may be coming? Can you prove that you warned them in advance?
No. 19. If you disagree with the decision to terminate, is your conscience clear that you did what you could to ensure a fair outcome?
No. 20. Have you considered offering a severance package that includes a release of claims? You probably wouldn’t want to do this with an employee who had committed serious misconduct, but it may be worth considering if the employee is being terminated for, say, poor performance. You also don’t necessarily have to go all-out in fighting the employee’s claim for unemployment.