In the news recently, there has been a lot of talk of employees’ right to sue “bad bosses”. The “bad boss” until now, has generally referred to management bullies whose goal has been to publicly humiliate the employee (e.g., having other employees, en masse during meetings, ridicule the substandard performance of the targeted employee, or taking that up a few notches to ordering the sub-achiever wear a clown hat or nose or some other such ridiculous gear). Obviously, the examples cited are not tolerated by a well run organization. But the lines of acceptable reprimands are seen to be fading as employee-rights organizations are now eyeing conditions such as stress-related health issues and coping malbehavior as a result of malicious management practices that are tolerated in the workplace. It is the responsibility of senior management to ensure proper intra-company management methods are in place but it is also prudent to proactively protect the company should it find just cause for an employee’s termination.
BNI investigators have worked on numerous cases in which we were assigned to covertly observe employee and management workplace behavior. The eyes of an impartial party often register situations differently from those with a stake involved. This experience has allowed us to formulate the below checklist for deciding if it is time to terminate and if so, how to proceed.
Is It Time To Terminate?
If you are considering firing a worker for misconduct, your first step is to investigate the incident. There is always the possibility, no matter how slim, that things are not as they appear to be. And the worker might have an explanation or reason for the misconduct that is not immediately apparent.
2. Check the files.
Never proceed without reading the worker’s personnel file. What you find — and what you don’t find — can have important repercussions. For example, if you are trying to figure out whether to fire someone for persistent problems (poor attendance or performance, for example), you should find some indication in the file that the employee was informed of these issues and given an opportunity to improve. And you should look carefully for any evidence of an employment contract limiting your right to fire the worker at will.
3. Review your written policies.
Read through your employee handbook, personnel manual, and/or any other written policies that have been in effect during the worker’s tenure. Do they give the worker sufficient notice that his or her conduct could result in getting fired? If you have a progressive discipline policy, have you followed it? Do your policies place any limitations on your right to fire workers at will?
4. Consider what the worker has been told.
What you say to a employee can be just as important as your written communications and policies. Have you — or anyone in authority at your company — said anything that contradicts your written policies and the documents in the personnel file? For example, have you led the worker to believe that he or she would not be fired despite performance or other problems? Has anyone made statements to the employee that could come back to haunt you in a lawsuit — for example, statements that could be construed as discriminatory or harassing?
5. Compare how you’ve treated others.
A fired employee’s most effective argument to a jury is that you’ve acted unfairly, by treating the employee differently from others who have been in the same position. If you have always treated your employees by the same rules, you don’t have to worry. However, if you’ve been inconsistent, you should have a valid reason for treating workers differently — for example, one worker’s performance problems lasted longer than another’s, or one worker’s misconduct was more serious.
6. Consider context.
Even if you have followed your policies, protected your right to fire at will, and been consistent with your workers, one shouldn’t ignore the surrounding circumstances. Consider the timing of your firing decision — for example, if you terminate an employee who recently complained of sexual harassment, can that be perceived as retaliatory? Also look at how this termination will look in light of your other firing decisions. If you see a pattern — for example, that only women or older workers are being fired, that may allow for a claim.
7. Look at options.
If you’re considering firing a worker for persistent problems, you’ve probably already tried disciplinary measures short of termination. Even so, now is a good time to revisit the issue. Do you think that the employee will be able and willing to improve? If so, a lesser disciplinary measure might be effective — particularly if you have made some managerial missteps in your dealings with the worker. However, will making an exception or bending the rules for this worker will seem unfair to others? The full picture needs to be taken into consideration. Also, if there has been a management lapse of careful notation in the employee’s employment file, correct it immediately. (We are not suggesting suddenly noting past incidents, that will only work in the terminated employee’s favor. Just be, or have your managers become, more diligent in record keeping.)
8. Get a second opinion.
If possible, have another person from within your company review your decision to terminate. This will help you make sure that your decision is reasonable, legitimate, and well-supported by the evidence. If the reviewer finds that your decision could be challenged, use his or her comments to help you figure out how you can either salvage the employment relationship or properly document and support your decision.
9. Bring in legal counsel, if necessary.
If you are faced with a close call of any kind — or if you are unsure whether your decision will hold up in court — talk to an employment lawyer before you take action. An outside review by an experienced employment-issues lawyer can save considerable time and money in the long run.
10. Document your decision.
If you decide to fire a worker after considering all the angles, you should document your decision in an internal memorandum to the worker’s file. Keep it short and sweet — describe the reasons why you decided to fire the worker, any previous efforts to help the worker improve, and the dates of any previous disciplinary meetings and warnings.
While conscious of the whistle blower laws and or discriminatory hiring practices, an employer may consider an online search for prior lawsuits at appropriate recording sites (e.g. e-law.com).
BNI Investigators: Street smart: Web savvy.