It’s never easy telling someone they’re fired. And in today’s litigious atmosphere, managers must work to eliminate the possibility of legal problems after the employee is gone.
With that in mind, here are nine questions supervisors and managers should answer before a termination decision is finalized.
1. Has the employee complained of harassment or unfair treatment?
This is a pretty common phenomenon – after all, many poor performing workers try to deflect attention from themselves. So, even if the claims are bogus on their face, they must be investigated and documented.
2. Has the employee recently returned from (or applied for) military or medical leave?
Timing is everything. Say an employee asks for a 12-week FMLA leave to care for an ailing parent. If she’s fired a week later, the coincidence of the action always looks suspicious in court.
3. Is the employee about to vest in a benefit or involved in labor activities?
Compensation and union activity are sensitive issues. Thus, if a worker gets canned just before reaching a vesting date, he or she is likely to say it has everything to do with money, and will hunt out a lawyer who agrees. Similarly, tread lightly with any employee who’s had a role in unionizing.
4. Has the employee complained of wrongdoing or a safety issue?
Again, it’s not uncommon for problem workers to claim company wrongdoing to avoid accountability. As always, be sure to document what’s occurred.
5. Were promises made to this employee by senior managers?
If those promises are in writing, the employer is pretty much stuck with making some kind of settlement upon the employee’s departure.
6. Were any requested accommodations denied to this employee?
This is always a thorny issue – made even more so by the recent broadening of the definition of disability under the Americans with Disabilities Act.
If the answer to this question is “yes,” it pays to revisit the the request and the company’s response. If you review a denied request and aren’t confident you handled it fully, a termination could be problematic.
7. Have others been terminated for similar offense or performance issues?
If the answer to this is “no,” you’re in good shape. Consistency is crucial.
When a fired employee can point to someone else who was guilty of a similar offense and was treated differently, an expensive lawsuit could ensue.
Consistent discipline is your best insurance against a discrimination lawsuit – not to mention its value as a strong message to employees that performance standards and behavior policies will be enforced across all levels.
8. What’s the impact of this termination on the rest of the organization?
A firing can ripple throughout an organization. Parting ways with a popular worker can hurt morale.
9. Is there any evidence of discrimination based on age, sex, race, religion, national origin, disability or any other legally protected characteristic?
Employers are wise to step back and take an objective look at the circumstances and personalities involved in every termination.
Policy violations and performance problems rarely occur in a vacuum. They’re inextricably entwined with all sorts of workplace issues – and when human behavior is part of the equation, things are rarely cut and dried.
Since everybody falls one protected class or another, under anti-discrimination laws, it’s hardly surprising that most employees who get fired at least entertain thoughts of suing their employers for bias.