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Contact Kehr Law today
Phone: (619)400-4942
Text Message: (619)823-8230
Email: dan@kehrlaw.com

Successfully managing a termination requires a pragmatic view of the law. In today’s litigious environment, most disputed terminations are ultimately tested in the courts which is why this information may serve as general information that applies to a substantial amount of employers.

Whether the theory is contract or tort, discrimination or negligence, defamation or invasion of privacy, the final arbiter is usually a jury. Juries generally decide cases not by the judge’s instructions on the law, but by common notions of fairness and “justice.” Accordingly, you should evaluate a termination procedure and its application in terms of how the events will be viewed by a panel of average people–not by legal scholars or appellate judges. In essence, every employer, notwithstanding his “legal rights,” is effectively restricted to terminating employees in a fair manner and for good cause. For persuasive counsel can re-characterize an inequitable termination in the minds of jurors as unlawful discrimination, defamation, or a pretext for some violation of public policy.

The following are key areas when an employer considers termination:

Performance Evaluations

Performance evaluations are the key to providing fair notice. Such evaluations must scrupulously apply the employer’s performance standards to the employee. Regularity and honesty are essential ingredients. The evaluations should note and document specific problems and incidents when standards have not been met. Giving the employee a copy of the evaluation and having the employee sign the evaluation are also important since this will establish the employee’s notice of his or her deficiencies. Most important, termination decisions should be made on the basis of performance deficiencies that have been pointed out to the employee yet have not been corrected. If the issue is misconduct rather than poor performance, the incident should be described in writing in sufficient detail to enable the reader to conclude both that the incident occurred and that it was viewed by the employer as serious enough to warrant immediate termination.

Written Procedures

Terminating a worker requires adequate documentation. Adequate does not mean exhaustive. What is required is a complete record of the facts that prompted and justify the termination decision. Written performance standards and job descriptions ensure that employees know and understand what is expected of them, and that failure to satisfy those set standards can result in their dismissal. By the same token, written policies and rules of the workplace inform employees of the type of conduct that will result in disciplinary action, including discharge. Putting performance standards and disciplinary rules in writing minimizes surprise, as long as the disciplinary policies and performance standards are applied fairly and consistently. A juror reading an employee’s file should be able to determine both the standards by which an employee was judged and that the employee clearly failed to meet those standards.

Meaningful Personnel Files

Written standards and policies are the basis of an employer’s offense against employment-related litigation. When litigation ensues, however, the first line of defense is the personnel file. Personnel files are a primary source of evidence in discharge cases and in many states must be available for review by the employee. If the employee’s conduct or omission was not important enough to be in the appropriate file, how could it be important enough to be the basis for a termination? The employee’s disciplinary history, performance evaluations, and counseling notes are essential elements of the file. The more detailed the documentary record is, and the longer the period of time during which problems have been recorded, the stronger the company’s defense to a wrongful discharge claim.

Exit Interviews

When an employee has been discharged, an exit interview serves several purposes. Often, the exit interview will indicate whether litigation is likely. The interview may also highlight errors in the company’s investigation or decision before it is too late to correct them. Finally, it is a convenient forum to obtain statements from the employee, including admissions of inadequate performance or misconduct, that may be useful to the company. In any exit interview, the employer should be sensitive to anything that indicates the employee feels he is being dismissed for an unfair or unlawful reason. In that case, the employer should give serious thought to holding up the discharge until further inquiry is made.
Exit interviews are especially helpful when the termination decision was made without review. The exit interview then can be a check against mistakes and inconsistencies, and gives employees the minimal process previously discussed. Carelessly conducted, however, the exit interview itself may expose an employer to liability.

Employee’s Understanding

The purpose of the exit interview is to listen to the employee. Generally, management has already stated the reason for its action. The exit interview is an opportunity to verify the employee’s understanding. The exit interview should not undermine or discredit  management actions. An employer who informs an employee of the reasons for his termination may be later estopped from relying on other reasons for discharge in defending against the employee’s claim of wrongful discharge. Additionally, false or inconsistent reasons given to an employee.

This is a preview of a publication soon to be released online at KehrLaw.com’s Area’s of Practice page. Check back soon to read the full publication.

To speak with an attorney about the above-referenced subject matter, contact us today. To speak to an attorney concerning your wills, trusts, business, and business succession planning, contact our office. The attorneys at Kehr Law are experienced local attorneys who have worked with partnerships and companies of all sizes in varying industries and can point out your needs as part of your unique estate planning and business succession planning needs.

Contact Kehr Law today
Phone: (619)400-4942
Text Message: (619)823-8230
Email: dan@kehrlaw.com

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