People who make firing decisions always think they are doing “the righteous thing,” says attorney Edward M. Richters,” but that’s not what counts. How it plays to the judge, the jury, and the EEOC is what counts.”
Richters comments came at a workplace law symposium sponsored by national employment law firm Jackson Lewis and the Connecticut Business and Industry Association. Richters is a partner in Jackson Lewis’s Hartford, CT office.
Here are his recommendations for minimizing the possibility of lawsuits related to termination.
Pre-Termination Review Process
Before any termination, your policies should mandate a review by someone outside of the chain of command of the person being fired. The reviewer—usually the HR manager—is responsible for making sure that the termination will be one that the organization can defend—and not one that’s going to come back to bite them.
You Are the Gatekeeper
In Richters’ experience, managers never give him the full story the first time around. And you won’t get the full story, either, he says. It’s up to you to be vigilant. Otherwise, you’ll terminate the individual, and only then, the manager will reveal, oh, yeah, I guess Jack did say something about needing time off to take care of his three sick children.
Richters says that his biggest asset is his willingness to ask the tough questions, the stupid questions. Don’t call the manager a liar, but make sure you diplomatically, but firmly, ask the questions.
- Why wouldn’t that work?
- How did you know that?
- When did you know that?
- Why are over 90% of those laid off over 40?
- Why was a disproportionate number of women or (members of any protected group) affected?
Probe and verify all relevant facts and circumstances, Richters says. Sometimes, managers just don’t realize what things might be important, but sometimes they are hiding something. Always look at history of the decision maker. Make a chart of the decision-maker’s history—how have others have been treated by this manager? The employee’s attorney will for sure be making this chart, says Richters.
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Eyeball the Documentation
Too often, managers and supervisors say they have something documented, but eventually you discover that the documentation is vague or missing. Eyeball it, says Richters. Remember, in court, if there’s no documentation, it didn’t happen, or it wasn’t important.
Is the person you are terminating the only person with documentation in the file? If so, it will look like you’ve singled that person out, which isn’t acceptable, unless it’s part of a formal performance improvement plan. Treat employees consistently. If you examine this person’s expenses—look at everyone’s expenses.
If documentation is shaky, the jury’s question is always going to be, How could you evaluate the person, how could you arrive at this termination decision, without anything to back it up?
One problem is that people assume that they will remember, but they don’t, says Richters. Suddenly they’re on the witness stand wavering, was that two months ago or last year? Carefully written performance reviews are essential when it comes to testifying.
Keep documentation professional. That doesn’t mean it has to be perfect and clean and neat, but does need to be professional—nothing like “the nitpicker’s back” or “the whiner was complaining again.”
Not Airtight
If your questioning shows that the basis for termination is not as air-tight as it appeared to be, says Richters, you may have to delay action. If there is inadequate documentation to back up the reasons for a termination, he says, take two steps backwards. You can afford to wait a few months.
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Tell the manager “I’m not saying no, I’m saying not now. I’m going to help you to do it in the right way. When you are on the witness stand, and you’re getting the tough questions, I want you to be comfortable. “
Delaying the termination isn’t so bad, Richters adds, because the situation will tend to sort itself out. Either the person is bad, and he or she will just add more ammo to the fire, or the person will get with it and improve, and you won’t have fired a productive employee, and you won’t face a lawsuit.
In tomorrow’s Advisor, more from Richter on terminations, and an introduction to the one-stop solution for every HR problem.