When someone is fired and can’t get hired elsewhere, a claim against the former employer is an attractive way to generate more than a little income.
Here are five danger spots where managers need to exercise special care.
1 Give me a reference and I won’t sue
Don’t give a bad-news departing staffer a good reference in exchange for an agreement not to sue.
The nightmare staffer leaves voluntarily or involuntarily and says, “I won’t file a lawsuit if you give me a good reference.” The manager is willing to do anything to get that person out the door and so agrees. And away the staffer goes with a great reference in hand, leaving behind a history of poor performance or unacceptable behavior or violations of policy.
Then a wrongful discharge suit comes in, the manager explains that the staffer’s performance warranted termination, and the plaintiff’s attorney says, “Why did you lie when you wrote this glowing recommendation?”
It’s an open and shut case. That little attempt to make an employee go away comes right back to bite in a big way.
2 Resign and make it easy for us both
Don’t ask a staffer to resign instead of being fired. That too happens often. The office has had enough of the poor performance and wretched attitude and wants to get rid of the individual but dreads going through the uncomfortable and difficult job of discipline and documentation.
So it takes the easy way out and asks the staffer to resign, with the offer made in these terms: “It’s not working out here for you. But rather than being terminated, why don’t you just resign? If you do, we’ll give you a good reference.”
It looks like a win/win situation. It’s easy for the manager, and the staffer saves face and goes to the next job with a good reference. But the matter may not end there. Again the danger is a wrongful discharge claim, this time the argument being that the resignation offer was actually a constructive discharge.
Constructive discharge is forcing an employee to quit by making the job intolerable, and it’s a discriminatory practice under the Equal Employment Opportunity Commission (EEOC). It’s firing without good cause.
The argument of retaliation can enter as well. And retaliation complaints are difficult to defend against. Suppose that same staffer earlier filed an EEOC complaint. With the good reference in hand, there’s a strong case that the doctors forced the resignation as retaliation for filing the complaint.
Whenever the office wants to get rid of a staffer, it should go through the regular disciplinary procedure. Any offer of resignation draws suspicion that the employer is hiding something.
3 Long-suffering for long-termers
Be careful too about disciplining the long-term employees.
In most cases, the people who have been with an employer a long time have also been living a long time and come under the Age Discrimination in Employment Act (ADEA), which prohibits age discrimination in employees aged 40 and older. When it comes to discipline, allow leeway to an employee who falls into that category. Anybody who has been with the office for many years has obviously had a positive impact on the business, and it’s fair to take the past good performance into consideration. If a long-termer who has a good track record does something that would ordinarily result in firing, err on the side of mercy. Look at it as a bump in the road and give a written warning. If that person gets fired and files a discrimination claim, it won’t look good for the office. It’s human nature to raise an eyebrow when a long-term employee is fired, even if a short-term employee would have definitely been fired for the same cause.
4 The other side of the story
A fourth area of caution: When there’s a disciplinary matter, ask for the employee’s side of the story. Good employment practice demands that. There could be mitigating circumstances that need to be taken into consideration.
Here is the example of a staffer who suddenly starts coming in late. Before lowering the boom, ask if there’s a reason for the tardiness. It could be the employee has divorced and now has to take a child to school and has been embarrassed to talk about it, in which case rearranging the staffer’s hours is probably a better solution than serious discipline.
Or, on a more serious note, suppose a female staffer misses a week of work without permission and the office fires her without asking why she was out. It may be she was absent because a male physician touched her inappropriately or threatened her and she was afraid to come to work. And it may also be that the office gets hit with an EEOC claim for firing her.
Before making any serious disciplinary decision, a manager needs to ask, “How is a jury going to look at this?”
5 The acid test for zero tolerance
Finally, be wary of any zero-tolerance policy. If it turns out to be not quite zero, it can spawn drastic and unintended results.
With a zero policy, a stated transgression is supposed to result in immediate termination. Yet often it happens that when the violation comes from someone the employer doesn’t want to lose, that person gets a second chance instead of a goodbye.
If the next person who does the same thing gets fired — and especially if that employee is in a protected category — the office has just opened the door to a claim of discrimination.
Don’t set a zero policy unless the office is absolutely sure it can stand by it 100%, no matter who violates it. Put it to the acid test: If the founding physician or the office’s largest revenue producer violates it, will that person get terminated? If the answer is no, trash the policy.
