April 14, 2010

There's nothing like a termination to get the "I'm-going-to-sue!" juices flowing. People want someone to blame, and guess what? It's not going to be them.

Ill-considered and hasty terminations spell lawsuit time after time. And most of those lawsuits are avoidable — if you know what to do.

Even if you ultimately win the lawsuit, you're a loser from the first moment you get sued in terms of the time, money, and energy you'll have to spend defending yourself. Far better to avoid the lawsuit in the first place. Here are 5 tips for doing just that:

1. Train managers to delay action until HR can evaluate. Be sure that managers always involve HR before anything irreversible is done. Impulsive firings, done in the heat of the moment, attract suits like honey attracts flies.

HR knows how similar situations have been handled in the past, what legal challenges may be involved, and whether there might be extenuating circumstances. So have managers delay a decision, even if it means suspending the employee and cutting off the person's access to corporate systems, while further steps are considered.

Don't turn an unpleasant termination into a litigious one. Join us on May 6 for a can't-miss webinar, specifically for California employers, that will explain how to minimize your risks and keep your organization out of court.

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2. Do an evaluation of key factors. There are a number of factors that might affect a decision to terminate. Have managers ask themselves:

• Is termination the appropriate punishment, in light of current policy and past practice?
• Would a jury consider termination fair and reasonable, given the offense?
• Has this employee filed past complaints, charges, or lawsuits? (For example, a complaint over discrimination or a question about safety, pay issues, or financial shenanigans? If so, juries may see your action as retaliation for a protected act.)
• Could this action be viewed as discrimination? (Is the person a member of a protected class?)
• Is there any contract, written or implied, that must be honored? Go back over your offer letter, for example, and see if there's any "and we expect to have you with us for many years" sort of language.

3. Establish agreement. Is there clear agreement among senior management, line managers, and HR as to why this termination must take place? And has this reason remained consistent over time? (Often the reasons top management gives in court are not the reasons given by the line manager at the time of termination — a difficult-to-explain situation, to say the least!)

4. Examine documents. Is there clear and adequate documentation to back up the termination decision? Are there witnesses? (Time and again, experts report, companies assume that there's paperwork to back up their decisions, but once they decide to go to court, somehow they can't find the papers.)

5. Treat the person with dignity. Many terminations are turned into lawsuits when the terminated employee is treated poorly — for example, conducting an angry firing in public, or refusing to listen to the person's side of the story.

The Termination Process: Exit Interviews, Termination Pay, and Post-Termination Steps to Keep You Out of Court

Now more than ever, employers find themselves making personnel changes for a number of reasons. Because times are still tough, former employees and their lawyers are scrutinizing all termination decisions — even perfectly legitimate ones — with a fine-toothed comb, looking for possible legal claims. Even if you're extremely careful and proceed with the best of intentions, California's termination requirements are highly technical and possess many traps for the unwary.

Don't get snagged in an expensive, preventable lawsuit. Join us on May 6 for an in-depth 90-minute webinar, specifically for California employers, that walks you through your termination-related obligations from start to finish.

You'll learn:

• A simple strategy for analyzing issues prior to termination
• How and what to calculate in the employee's final payment
• What must be included in final pay — and when final pay must be delivered
• The notices you must provide to departing employees
• Pros and cons of exit interviews, and how to conduct them effectively
• How and why to use releases and make them legally binding
• The claims that cannot be released
• How to handle reference requests
• Strategies to protect you from, and help you defend against, unemployment claims

Register now »

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