The first part of this article addresses the questions an employer should ask themselves before employment terminations.
Following an employment termination, an employer can reduce the likelihood of a challenge in a number of ways.
- Ensure that post-termination procedures are followed. Public sector employees may be entitled to a post termination hearing. Private sector employees would also be entitled to a hearing if provided for in company rules or in an employment agreement.
- Be candid with the employee. Be candid when advising the employee of the reason for termination. Don’t “sugarcoat” the reason in order to avoid hurting the employee’s feelings. If an employee later sues, these statements will adversely affect the employer’s defense.
- Respect the employee’s feelings. Do not do anything to embarrass the employee during the termination process. When possible, avoid “escorting” the employee from the workplace in front of co-workers. Employees who have been humiliated are more likely to challenge their termination.
- Respect the employee’s privacy. After termination, advise only those who have a need to know the reason for the termination, and advise them to not discuss the matter.
- Obtain a release. If any severance benefits are provided (severance pay, payment of medical insurance premium, outplacement counseling, etc.), in addition to those owed an employee under company policy, consider making the benefits conditioned on the employee signing a release. For a release to be effective against federal age discrimination claims (employees 40 or older), the release must contain several specific provisions, including a 21-day consideration period and a 7-day revocation period.
- Avoid inconsistent post-termination statements. Do not make post termination statements in a termination notice, reference letter or response to the state unemployment compensation office that are inconsistent with or contradict the reason for termination. Such written statements, like comments to the former employee, will create credibility problems for the employer.
- Maintain relevant documents. An employer should secure the employee’s personnel file and retain all documents, including the employee’s poor work product, that support the decision to terminate the employee.
- Help the employee find other employment. Consider providing outplacement services and, in certain cases, a neutral reference to aid the employee in finding another job. The sooner an employee is reemployed, the less likely the employee will bring an action against his/her former employer.
The first part of this article addresses the questions an employer should ask themselves before employment terminations.
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Disclaimer: Although Mel Muskovitz is an attorney, because this website is read by people from all states and from countries all over the world, the advice offered is correct, but different laws may govern your approaches to human resources and labor issues. Please check with an employment law attorney to ascertain your decisions, policies, and practices meet the legal standards where you live and practice.
This article contains a brief overview. It is not intended to be a comprehensive discussion of the subject. Further, because every set of facts and circumstances may raise different legal issues, this article is not intended to be and should not be regarded as a legal opinion.
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Mel Muskovitz is an attorney who represents employers about labor and employment matters in state and federal courts and before administrative agencies. He also assists his clients to avoid legal problems by preparing or reviewing employee handbooks, conducting training, and advising on appropriate preventative measures such as employee discipline. He assists employers to comply with the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. He can be reached at Dykema Gossett PLLC, Phone: (734) 214-7633, FAX: (734) 214-7696, or by Email.
