"Discharged," "terminated," "adversely affected" -- or the slightly less eloquent "canned," "booted," "deep sixed," "axed" -- however labeled, getting fired is a traumatic experience for most employees. And it is a very dangerous undertaking for employers. It is a time when many employees start remembering all the contract-forming "promises" they were made, the age, sex and race based comments that (employers later learn in litigation) created a "hostile" environment, and the complaints raised that eventually provide grounds for whistle-blowing-based retaliation claims. As an added bonus, when the former employee slanders herself to a future employer by stating that she had been terminated from her previous position, a "self-defamation" claim may be asserted.
Firing is an art. When each step of the termination process is carefully considered and orchestrated, an employer gains at least two advantages. First, by taking the time to articulate the exact reason for the adverse employment action, the employer is forced to carefully weigh termination versus continuation options. Second, in the event of litigation, proper documentation supporting the rationale for the decision, and evidencing a routine termination process, can greatly reduce the likelihood of an unfavorable result. The decision to terminate, the actual termination and the aftermath must be handled with great caution and sensitivity to statutory and common law.
Shakespeare, The Doors and Dickens
Shakespeare "To Fire or -- Not To Fire"
Understand that in the process of determining whether to terminate an employee, the employer is creating evidence. Every document drafted, every conversation conducted and every angle analyzed, will be subjected to intense scrutiny once litigation ensues. An employer needs to proceed operating with the assumption that witnesses will transform into deponents, and documents into exhibits. This is why, for example, the discharge of an employee due to poor performance requires aspects of the individual's performance deemed substandard to be plainly stated in review documents. Every way in which the employee had failed to satisfy the employer's expectations must be noted. Of course, from a litigation perspective, in the best case scenario the employee's personnel file includes negative reviews, unexcused absences and perhaps a performance improvement plan which the employee agreed to, but failed to satisfactorily complete. Where such documentation does not exist, the employer should either be satisfied that the termination can be justified to a jury, or re-think the decision to terminate.
The Doors -- "This is the End"
Once a termination decision has been reached, employers must plan every detail of the actual termination from the initial contact to the completion of the necessary paperwork. Preparation is the most important element to a successful termination. In order to avoid potential legal claims arising out of the termination, including defamation, emotional distress, invasion of privacy and other claims, employers should consider the following steps:
- Schedule a meeting with the employee at a designated time, in a private office or conference room, either before the workday begins, during lunch, or after normal business hours have concluded. Arrange for a time when the majority of the workforce is not present.
- Have a second member of management present to take notes and serve as a witness. This individual and his/her documentation of the meeting may prove critical if the employee attempts to misrepresent the statements made at the meeting, specifically with respect to the reason for termination. The notes should reflect both the decision maker's comments, as well as those of the terminated employee. Oftentimes, an employee's initial reaction is an admission or acknowledgment of poor performance.
- State the real reason for termination -- DON'T LIE!! Frequently, because managers have a personal affection for an employee, they fail to be completely honest regarding the true basis for the discharge. An employer will therefore justify the decision to the employee by complaining of a downturn in business, and then hire a replacement almost immediately. It is much more difficult (and expensive) to explain this turn of events to a jury, than it is to simply state the actual reason(s) for termination.
- While the employee should be allowed some opportunity to ask questions, the meeting should be relatively brief.
- Be prepared to summarize the employee's benefits and final payroll information. The name and telephone number of the appropriate contact should be provided.
- Consider having the employee escorted to the work area, desk or office in order to retrieve personal effects, and then to his or her car. Most courts have ruled that escorting employees from the premises is not actionable as defamation. In some instances, it may be best to have the employee return after hours or on the weekend to gather personal items.
Dickens -- "The Ghost of Employee Past"
Former employees, even those who elect not to immediately pursue legal remedies, may still haunt their former employers. The "after-life" of an employee, i.e., the communications an employer issues -- or does not issue -- regarding the former employee, can create still further liability for the employer.
Generally, employers enjoy a qualified privilege when they communicate information about an employee to a prospective employer. This advances the dual public policy purpose of allowing employers to give opinions and information to persons legitimately making inquiries regarding former employees, while protecting the job seeker from malicious undercutting by a former employer. Legislation granting immunity to employers that give job references concerning current or former employees to prospective employers has been enacted in more than 20 states. Ordinarily, the statutes prescribe what information an employer may provide and still retain its statutory immunity. For example, an employer in New Mexico may provide references, while only job performance information may be provided by employers in Alaska, Colorado, Florida, Illinois, Oklahoma, Oregon and Tennessee. Connecticut thus far has considered but not yet passed such legislation.
With respect to requests for referrals, employers are advised that, as a general rule, letters of reference should not be offered. First, a negative assessment, though arguably privileged, may result in a defamation claim. Second, a glowing recommendation upon which a prospective employer relies, may result in a suit by the subsequent employer if that entity incurs damage as a result of hiring the employee. If negotiated as part of a settlement package, such letters should be limited in their scope. Thus, the ideal letter of reference is completely neutral and includes only dates of service, duties and compensation information. More detailed recommendations might indicate particular strengths or accomplishments. Such example letters, attached as exhibits to settlement agreements providing for such letters of reference, should be stamped DRAFT through the signature line and should not appear on company letterhead. Even when commenting upon favorable qualities, avoid recommending former employees for employment.
Finally, employers must also be aware of potential liability under tort theories for providing a false or misleading reference. In a recent decision issued by the California Supreme Court, several defendant school districts and their administrators who provided a job reference for a former educator to a job placement office, without disclosing that the individual had previously been the subject of complaints of sexual misconduct and impropriety, were subject to liability in a suit brought by a student whom the former employee sexually assaulted when he was at a job for which the reference was provided. The court ruled that "the writer of a letter of recommendation owes to prospective employers and third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the prospective employer or third persons." The court characterized the recommendations as "half-truths," in light of the defendants' alleged knowledge of charges that the former employee had engaged in repeated sexual improprieties. Of course, the case presents the classic "Catch-22" for former employers: disclose the existence of an unproven accusation, unfairly destroying the employee's chances for a new job, and be exposed to a defamation suit if the negative information causes the loss of a job opportunity; or refuse to provide prior job information, and expose others to harm that otherwise could be prevented, and possibly incur liability.
From the initial decision "to fire or not to fire" through dealings with future employers, every aspect of an employee's termination must be handled with care. But serious consideration to each step in the process will result in an increased likelihood that the employer will prevail in litigation.