Once the decision to terminate an employee has been made, the final step is the actual termination procedure. Just as careful evaluation of the circumstances leading to the decision to terminate can minimize your legal exposure to a lawsuit, so to can a carefully executed termination procedure.
Perhaps the most important point for employer's to keep in mind is the need to treat the employee fairly. The most common mistakes made in the termination process include:
Therefore, to reduce the risk of a wrongful termination lawsuit, employers should be certain that:
When terminating an employee, especially a "high risk" employee, use the checklist on the following pages to review the decision and document the analysis. Use one checklist per employee, and put the results into the employee's file. This record will aid you greatly in defending a claim in the event that should become necessary. (Note: if you prepare this checklist with your attorney in anticipation of a claim, do not put it into the employee file. Instead, keep it separate and do not share it with those that do not need to know its contents. In this way the checklist will be protected from being "discovered" by the employee as it will be protected by the attorney-client privilege.)
For each of the points in the checklist, first check the item to be sure you have read and considered it. Then, in the space below each question, write your notes about the question. These notes will aid you more than you can imagine if you are sued and asked about these very items years later.
TERMINATION CHECKLIST
___ 1. Is the reason for the termination clear?
___ 2. Are all those that participated in the decision in agreement with the grounds for termination?
___ 3. Is there credible documentation and testimonial evidence to support the decision?
___ 4. Is the termination consistent with the treatment of others in similar circumstances?
___ 5. Has the office's termination policy been followed (see employee handbook)?
___ 6. Are there any office policies that may protect the employee against being terminated from being discharged for the reasons contemplated?
___ 7. Is there a progressive discipline policy, and, if so, has it been followed?
___ 8. If progressive discipline was not followed, is there a basis for immediate termination?
___ 9. Is there documentation to demonstrate compliance with progressive discipline?
___ 10. Does the termination violate any state or federal laws that may prohibit termination here?
___ 11. Did criticism of the employee start only after the employee raised concerns of discrimination or other unlawful conditions at work?
___ 12. Is the reason for termination consistent with problems that have been discussed with the employee in the past?
___ 13. Will written performance evaluations or discipline actions support the termination decision?
___ 14. Is the decision to terminate consistent with recent treatment of the employee (e.g. asserting poor performance but recently gave a pay raise)?
___ 15. Have the employee's explanation of events leading up to the termination been considered, and, if so, is there credible evidence for rejecting the explanation?
___ 16. Is the employment relationship likely to be found to be "at will" or could an implied contract not to terminate without cause be inferred?
___ 17. Have any oral promises or representations been made to employees suggesting employment for a specified period of time (e.g. as long as their work is good, etc.)?
___ 18. How long has the employee worked for the office?
___ 19. Is there good cause for the termination?
___ 20. Have alternatives to termination been considered and documented?
___ 21. Has the employee been given the right to appeal the decision or to have the facts upon which the decision relies be investigated?