Don Phin

Perhaps the most frequent question we receive on the HR That Works Hotline is the one that produces the most fear in any manager or owner: "Can we fire this person?" Of course, what they really mean is, "If I fire them, can they sue me?"<br />
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Here's how we usually answer this question:<br />
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* Be aware that you might easily face litigation. For a filing fee of about $150, anybody can sue you!<br />
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* Review the questions on the HR That Works Pre-Termination Checklist (see the Form of the Month).<br />
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* Will it come as a surprise to the employee? The answer says a lot about your performance management. If the employee has been performing poorly, to what degree have they addressed this challenge? Have you provided disciplinary notices or performance plans?<br />
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* Check to see if the employee falls into any protected categories. Although employment is "at-will," the exceptions have, in a sense, swallowed the rule. If an employee fits within a protected category (such as race, religion, age, gender, etc.), they might claim that the real motivation behind their termination has nothing to do with performance. Bear in mind that courts will usually uphold "mixed motivation" cases in which a poorly performing employee was also discriminated against. In other words, they're treated differently than other employees who have performed poorly. Determine whether discrimination played any role in the termination decision. Give the employee a way to complain if they feel that discrimination played any part in their poor performance reviews or termination decision.<br />
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* Review employee complaints. Whistleblower and retaliation cases are filed by employees who complain about health or safety issues and other concerns regulated by state or federal laws. If these people have also complained about discrimination or harassment, you might well face a claim of retaliation. As a loose rule of thumb, most attorneys and judges will consider any adverse action taken within three months of a complaint as "retaliatory" – which means you'll have to prove that it wasn't. Good luck.<br />
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* Make sure your documentation is in place. Do you have performance evaluations which show the deficiency the employee is being fired for? What about there disciplinary notices or performance plans? What benchmarks apply to determining the employee's performance? Did they sign an employee handbook acknowledgement identifying the impropriety of the conduct at issue? Although it's always easy to say that someone is being fired for poor performance, every employer faces this challenge: If you're going to claim that the poor performance was going on for a while and you didn't already fire the employee, they might allege that the situation couldn't have been that bad — which means that something unique was involved, such as discrimination or retaliation. That's just one trap employers face when they don't discipline and document in a timely fashion.<br />
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* Be careful when terminating "damaged goods" employees. An employer might be concerned that the employee is sick, in failing health, or addicted to drugs or alcohol (they could have also been injured in a Workers Comp claim). In a sense, they're "damaged goods." If that's the case, be aware of your obligations under the ADA (15 employees or more) and FMLA statutes (50 or more employees). The advice is always the same: Don't play lawyer, doctor or psychologist — unless you are one. Treat the employee as you would a loved one. Focus on their performance and what reasonable accommodations, including leave, might help them to meet legitimate performance standards. Do this regardless of whether the employee is sick, inured, disabled, or otherwise limited in their ability to perform.<br />
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* Don't forget the possibility of human error. We all make mistakes. In one Hotline call a CEO asked if he should fire one of his warehouseman for throwing a cigarette into a tire pile, which then ignited and burned down the warehouse. It was suggested that the CEO might want to give the employee a Darwin Award (for incorrigible stupidity) and then review the man's work history. If this is a long-time employee who has been working steadily and is relatively safety conscious, I don't know that I would fire him. If you face a similar situation, consider signing a "do one more stupid thing and you're out of here" agreement with the offending employee.<br />
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* As a last-ditch effort to defuse a possible claim, consider doing an exit interview.<br />
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Follow these guidelines and your exposure to employee lawsuits will be cut in half.<br />