What’s one of the killer problems with defending wrongful termination lawsuits? When “the story” about why the person was fired is inconsistent. That is, when HR, the manager, and the documentation don’t agree.
For example, here’s what happens:
The employee’s performance is poor enough that he or she has to be fired. But the supervisor won’t tell the person that’s why he is being fired. Why? The supervisor never once told the person that his performance was poor. So the supervisor blames “the budget” or “headcount,” or says that “they’re making me cut back.”
So far, so good. The supervisor isn’t in trouble for never informing the employee of his poor performance, and the employee thinks he’s being fired for a reason out of his control.
But what happens? The supervisor hires a replacement. Now the ex-employee thinks: They’ve lied to me. It wasn’t the budget. It must be because I am a member of a protected class. (No, the person is never going to think that it has to do with his or her poor performance.).
Is it any surprise that the lawsuit is filed?
And now you’ve got the following:
- What the employee was told=budget
- What the employer now claims=poor performance
- Performance appraisal=”satisfactory”
- Recent raise and bonus
- Various other emails, documents, unemployment hearing records
When the stories don’t agree, the jury knows only one thing for sure—the company lies. And that leaves them with only one conclusion that makes sense—discrimination.
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The ‘Let’s Get Our Stories Straight’ E-mail
So, before you fire, you decide to send out an e-mail that says “Let’s meet and get our stories straight.”
That will solve the problem, right? Well, no, that’s not the best course. It screams collusion, fixing, falsification. But you do want to evaluate all your actions and documents before you take action. If you discover discrepancies, as one expert recommends, you may have to tell the firing manager:
Look. We could fire the person now, but we’ll be married to him in court for years. If we wait, we can get this done without all that baggage.
Of course, the best solution is to do things right from the beginning. And that starts with your policies on performance management, discipline, and termination.
In fact, our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let it slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.
Fortunately, BLR’s editors have done most of the work for you in their extraordinary program called SmartPolicies.
Don’t struggle with those policies! We’ve already written them for you, and at less than $1 each. Inspect BLR’s SmartPolicies at no cost or risk.
SmartPolicies’ expert authors have already worked through the critical issues on some 100 policy topics and have prewritten the policies for you.
In all, SmartPolicies contains some 350 policies, arranged alphabetically from absenteeism and blogging to cell phone safety, EEO, voice mail, and workers’ compensation. What’s more, the CD format makes these policies easily customizable. Just add your company specifics or use as is.
Plus, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated—or new ones are added—as needed, every quarter, as a standard part of the program.
SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, let us know, and we’ll be happy to arrange it.