Parting is Such Sweet Terror: How to Eliminate the Fear of Firing

Much of my practice involves advising businesses on how to part ways with troublesome employees. Usually, no matter how egregious the employee's conduct has been, the client is terrified that somehow she will screw up the termination process and gift wrap a lawsuit for the employee.

There is good reason to be fearful — EEOC investigations are easy for employees to initiate and employment lawsuits can quickly drain precious resources. And employers should not feel protected by Tennessee’s "employment at-will" doctrine, which states that an employer can terminate employment and an employee can quit employment at any time for any reason. In reality, it does not provide the sweeping protection it would appear to provide because it is actually defined and diminished by the exceptions created by the myriad anti-discrimination, anti-harassment, and anti-retaliation laws.

These laws create “protected classes” of employees that include race, religion, sex, sexual orientation, color, national origin, age, disability status, veteran status, whistleblower status, and workers compensation claimants. Therefore, when an employer calls for advice, my first order of business is determining if an employee falls within one of those protected classes.

But here is the big point: no employee — even those in a protected class — is entitled to keep his job if a legitimate basis for termination exists.

Therefore, if an employee in question falls within a protected class, my focus is determining if the employer can prove that the basis for firing the employee is unrelated to the employee's protected status and is based upon a legitimate reason. This always hinges on how the client prepared for such a contingency and whether it addressed the relevant employment issues when they arose.

The key then is for employers to adopt policies and follow best practices that generate evidence when issues arise so that they can prove a legitimate basis for termination and avoid liability.

Here is what I recommend:

1. Do performance evaluations. Nobody enjoys doing them and nobody enjoys receiving them, but they are the best evidence to establish a history of substandard job performance. Tailor them to the job at issue and keep them simple. A warehouse worker's evaluation form should not be the same in content or length as the one for the VP of Marketing. They should contain only the relevant areas of evaluation. For rating performance, I recommend just 3 categories: exceeds expectations, meets expectations, and falls below expectations. Anything more dilutes the message and gives your managers a way to soften criticism. For the same reason, I do not recommend giving the employee an overall rating at the end.

2. Adopt a progressive discipline policy that has, at least, steps of verbal warning, written warning, and termination. If employees know the steps by reading the handbook, then they will know what to expect for common performance issues. But make sure that you retain discretion to skip steps in case of serious infractions by employees.

3. Use Performance Improvement Plans. A PIP provides clarity and places an employee on notice that he faces termination if he fails to follow the plan during its term. The employee will either improve or decide to find employment elsewhere.

4. Document everything. Follow the adage: "If it's not written down, it didn't happen." This includes verbal warnings, which may seem contradictory, but it's not. A written warning is written down, shared with the employee, and signed by the employee. A verbal warning should be a conversation with the employee that is expressly communicated to the employee as a verbal warning. Afterwards, document the conversation, including the parties present, and place it in the employee's file.

5. Be frank and truthful when evaluating employees or documenting issues. All too often I'll receive a call from a client who is incensed and adamant that a certain employee must be fired; yet when we pull the most recent performance evaluation, she will have been rated "meets expectations" for the relevant performance areas. Or we will pull a written warning and the description will not describe a severe or serious issue.

6. Have a witness present for key meetings. Often employees will admit wrongdoing during a meeting with a supervisor, but then deny having done so later. Having a witness present will help establish the truth if the employee changes his story.

7. Never discuss serious employee issues via email or text. Email and texts are hastily written, yet they exist forever. Thus, it is no wonder that poorly worded emails and texts often haunt an employer facing a lawsuit or investigation. Take the time to discuss matters in person or on the phone.

8. As soon as you feel concerned, call your lawyer. Not only is advice more useful before a problem festers, but attorney-client privilege will protect the conversation.

9. Apply policies consistently. If you make a policy exception for one employee, be aware that if you don't make the same exception for another employee later on, it could be used as evidence of illegal discrimination or retaliation.

10. Train your managers on all of these points. Your defense of a lawsuit or investigation will only be as sound as your manager's performance.

11. Do not procrastinate. Rarely does the passage of time solve an employee problem. The longer the problem exists and the longer the employee hangs around, the more likely she will file a workers compensation claim, voice a whistleblowing concern, claim a disability, or do something else to place her in a protected class under retaliation or discrimination laws.

12. Do not provide any extra benefit to the employee upon termination without obtaining a liability release. No well-adjusted person enjoys firing someone, so it is only human nature to want to soften the blow by providing severance, extended health insurance, or some other benefit. If you are so inclined, condition your generosity on obtaining a liability release from the employee. You'll be glad you did.

13. Understand what a disability accommodation is. If an employee asks for a schedule adjustment, a special piece of equipment, or any other accommodation due to a physical limitation, understand that your kindness could be used against you if the employee later claims a disability under the Americans with Disabilities Act. Under the ADA, even if the employee's physical condition does not qualify as a recognized disability, an employer can still trigger coverage under the act by treating the employee as disabled.

14. Assume all disciplinary meetings with employees are being recorded by them. They often are.

While these may seem like a lot, a good employment attorney can help you proactively establish the policies and practices necessary to give yo maximum flexibility and confidence when addressing employee issues and terminations.

If you have any questions about any of these points, don't hesitate to contact me at 615.916.3224 or tmckee@tmckeelaw.com