In yesterday’s Advisor, we explored the dangers of firing at-will employees for no reason or a silly reason. (It’s possible, but dumb.) Today, two more difficult situations, and an introduction to a policy program that will help keep you out of legal trouble when you fire.
A valid reason is advanced, but evidence contradicts it
Yesterday’s Advisor covered the situation when there’s no documentation to back up a firing. Perhaps worse is the situation in which documentation does exist, but it contradicts the reason that has been advanced. Typical situations:
- Poor performance is alleged, but performance appraisals all say “Good.” It doesn’t matter that “good” is a low ranking in your company; juries will read “good” as “good.”
- Poor performance is alleged, but the employee recently received “Sales Person of the Year.”
- Poor performance is alleged, but the employee just got a raise and a bonus.
In these situations, outsiders will distrust your reason and that leaves them no choice but to go with the employee’s reason.
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More than one valid reason is advanced
The other scenario that commonly dooms defenses against termination lawsuits is when more then one reason is advanced for the action. For example:
- The manager testifies that poor performance was the reason for the termination, but the notice given to the employee mentions “budget cutbacks.”
- The manager says that poor performance was the reason but testimony at an earlier hearing says “downsizing.”
- Formal documentation all agrees that the termination was for budgetary reasons, but there’s an email that says “get rid of that troublemaker who complained to EEOC.”
Once again, your defense is doomed. Two different reasons add up to none.
How do you go about preventing these unwinnable situations? It all starts with policies: policies on hiring, firing, discipline, documentation, and a host of other topics.
How about all of your policies? Detailed? Accurate? Up to date? Our editors estimate that for most companies, there are 50 or so policies that need regular updating. It’s easy to let it slide, but you can’t afford to back-burner work on your policies—they’re your only hope for consistent and compliant management that avoid 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.
Just as important, 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.
Many employers forget to train their managers on the importance of consistent, accurate performance ratings not just within their departments, but across them. You should make an effort to standardize so that you don’t have some “easy graders” and some “hard graders.”