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Avoid these 3 deadly employment law traps when hiring or firing

Three errors that cause wrongful terminations

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 in all types of businesses, manages 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.

Despite all the warnings, employers still fail to document poor performance.

“They talk to employees, but they don’t write it down,” and in most cases, they say they 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. It’s possible to get by with just a note that there was a conversation with the employee, the date, and the topic.

He gives the example of “Met with Staffer A today regarding continued failure to check entries for errors. Staffer A acknowledged errors and said she will make improvements.”

Date it, sign it, and file it.

That may be skimpy, but from a legal standpoint, “some sort of documentation is better than nothing,” because most cases hinge on the claim that the employee didn’t know there was a performance problem. Those few notes are proof enough that the employee knew full well what was going on.

2. Comparing apples to oranges

Next is the failure to make a fair comparison between the discipline being handed out now and what’s been handed out in similar situations.

Golden’s advice is to ask two questions before taking any action against any staffer.

  • Can I show that I’ve been consistent with other staffers who have done something similar?

If the answer is no, there’s an easy argument that the termination was discriminatory.

  • 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 a good performer or a top money maker a second chance; it’s tempting to use the conduct as an opportunity to say good-bye to a mediocre employee.

The essentials of progressive discipline

What should a progressive discipline policy include? Peter Golden, a business and employment law attorney with The Golden Law Firm in Atlanta, recommends following 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 or copies of complaints from patients
    • a statement that there has been a verbal warning
    • a statement 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 managers 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 it’s mostly the employees who didn’t anticipate disaster who file EEOC claims. People who have known all along what could happen 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.

And write that letter “as if it were a jury exhibit.” It has to be “clear and unambiguous” on why the office fired that person.

Things have to be equal. If today’s firing is for lying and if a top performer 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 60 years old and the office later gives a second chance to a 30-year-old in the same situation, age 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.

And legalities aside, unfairness is a morale killer.

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 EEOC 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 it?”

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. 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,” he says. When it results in termination, the action 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 one of the first questions the EEOC looks at in a wrongful termination claim is whether the employer followed a progressive discipline policy.

If so, the EEOC usually bows out right there.

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