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Termination May Not Be the End

Perhaps a terminated employee caused problems with co-workers, was an under-performer, violated company policies or all of the above. Although terminations generally are stressful and unpleasant experiences for all, employers hope that this change will eliminate problems.

Unfortunately, an employee termination can be the source of a new problem for the employer and the beginning of another relationship between the employer and the now former employee. The former employee may file a wrongful termination claim alleging that his former boss and employer did something wrong. The employer’s “wrongdoing” simply may be its failure to take consistent disciplinary action or the timing of the termination itself. While it may be true that the employee “should have been terminated a long time ago” (or should have never been hired), bad timing and inconsistency often overshadow bad performance and conduct and increase the chances that termination will not be the end.

Many terminations result from a manager’s emotional response to a situation or series of situations. When emotions or the exhaustion of patience take over, risks associated with terminations increase. Some decision-makers do not recognize these risks, while others downplay them based on an over-reliance and likely misunderstanding of the employment at-will doctrine. Under this doctrine, employees not employed for a definite time pursuant to an agreement can be terminated without cause or notice.  On its face, this doctrine seems to make employers practically bulletproof because the vast majority of employees are employed at-will. The at-will armor is far from impenetrable, however, as almost all wrongful termination charges and lawsuits are filed by employees who were employed at-will.  Raising the at-will doctrine as a defense to these claims generally goes nowhere fast.

Most wrongful discharge claims are brought in the form of a discrimination or retaliation claim or both. In a typical discrimination claim, the allegations are that the employer treated the fired employee differently than another employee who engaged in the same or similar misconduct or had the same or similar level of performance. The dispute in the lawsuit generally is not whether the fired employee engaged in misconduct or underperformed.  Those facts are often conceded. The dispute often centers on the reason the employer did not terminate others who engaged in the same conduct.  The former employee will allege that the reason for the different treatment was his/her race, sex, religion, age, etc.

By way of example, an employer fired an African American employee after the employee wrecked a company vehicle. On the surface, this termination decision seems like a no-brainer, especially since the employee was “at-will.” The employee never denied wrecking the vehicle, even when he filed a lawsuit alleging race discrimination. His theory was that the employer had not terminated non-African American employees who also had damaged company property. In other words, his allegations were that the employer treated him differently because of his race. Whether or not race was the reason for the alleged difference in treatment will be decided by a jury.

Retaliation claims take a similar route to the courthouse. Many employment laws include anti-retaliation provisions. For example, the FMLA, OSHA, the FLSA, workers compensation laws and the anti-discrimination laws are just some of the reasons employers are prohibited from retaliating against employees who exercise their rights under these laws. The exercise of these rights is called engaging in “protected activity.” An employer that terminates an employee for engaging in protected activity is risking having to defend a difficult lawsuit.  In the last few years, there have been more EEOC charges alleging retaliation than any other category of discrimination.

To illustrate how retaliation claims come to life, suppose the company wants to terminate an at-will employee for excessive absenteeism. With accurate records establishing attendance policy violations, this decision also  appears on the surface to be no brainer. But what if that same employee had recently complained about harassment or discrimination, made a safety complaint, filed a workers comp claim, or recently requested or taken protected leave? And, what if that same employee had a terrible attendance problem that went unaddressed before he engaged in protected activity or there were other employees with similar attendance issues that have not been terminated? These facts may suggest that something other than attendance was the real reason for the termination decision. If the employee is still terminated under these circumstances, the company may have a chance to explain its process and rationale in a legal forum.

While not all wrongful termination claims can be avoided, employers can take some relatively simple steps to increase the chances that the termination will be the end:

  • Slow down and think before pulling the trigger on a termination.  Involve someone else (e.g., human resources), who does not have an emotional investment in the situation. That person likely will have a more objective assessment and see things that may have been missed.
  • Ask if the action about to be taken is consistent with previous actions? Review what was done in the past when faced with these facts or this situation or one similar to it. If termination has not always been the company’s response, then ask if there is a legitimate way to distinguish this situation from the others. If not, termination should wait.
  • Has this person recently made a complaint, taken leave, requested leave, been involved in an investigation of misconduct or done anything else that would qualify as protected activity? If the answer is yes, ask if the reason for termination is on solid ground. If using a dust-covered rule violation or performance standard as the basis for the termination decision, it may be prudent to wait.
  • Will the employee will be surprised to hear that he is being terminated? A termination decision should never be a surprise.  Either the terminable offense is one that no employee could reasonably expect to get a second chance, therefore not a surprise, or the employer has diligently documented counselings with the employee that include the warning that continued non-compliance will result in further disciplinary action, up to and including discharge, thereby eliminating the surprise element.
  • Treat the employee with dignity and respect during the termination process. Not doing so may give a recently terminated employee a reason to seek revenge.
  • Seek legal counsel before making a risky termination. The fee for this advice will be money well spent if it helps avoid an expensive legal challenge.

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