Practical Considerations in Employment Terminations

A strong workforce is a critical component for an employer’s success, and work is at least as important for employees. Work is a source of much more than income. It is a source of dignity and self-worth for employees. As a result, employment terminations can have high stakes, because of the risks of litigation and the impact on the workplace.

This blog will not analyze the legal claims and defenses, but instead will address practical considerations and considerations for the workplace in general, understanding that context will be important.

Practical Considerations

From a practical standpoint, prior to terminating an employee for poor performance, an employer should consider whether the employee has a history of positive evaluations or pay raises that could cast doubt on the employer’s claim that termination was for poor performance. It is also important to determine if the employer has a history of overlooking similar performance issues for the employee or others. It is also important to ensure that the employee has been given an opportunity to address the concerns before termination to determine if there is a satisfactory explanation. Third parties reviewing a termination will expect at least that basic level of fairness.

The employer should also look at other factors that could affect or undermine its decision to terminate the employee. For example:

• Has the employee’s supervisor had issues with other employees?
• Is the supervisor new?
• Has the supervisor been disciplined or counseled regarding performance?
• Are there previous supervisors, either still with the company or who have left, who would be favorable witnesses for the employee?
• Will other employees be favorable witnesses?
• Are all the necessary witnesses regarding the termination still employed and on good terms with the employer?
  
  

It can be an unpleasant surprise to learn during litigation that the supervisor has been terminated or, worse, that the real underlying issue lies with the improper handling of the supervisor’s mismanagement of the employees.

Another factor is whether the performance issue can be corrected with coaching and progressive discipline. Some issues, however, such as workplace violence, harassment, or the employee’s breaching the employer’s trust, are likely significant enough to render continued employment  unfeasible.

Third parties, particularly juries, looking at a termination will likely evaluate the decision from a fairness standpoint. They will look at many factors to determine fairness, including length of employment, whether the employee was given the chance to improve or explain, employee evaluations, and whether the employee received regular pay raises, particularly merit raises, which would be inconsistent with claims of poor performance.

Non-Legal Considerations

Just as important as an analysis of the legal claims and the practical considerations with those legal claims are non-legal considerations. Just because an employer can terminate an employee with minimal legal risks does not mean it should. The employer should look at the potential impact of the termination on the workplace and the workforce in general. For example, is the employer supporting its supervisors when they make difficult decisions or making it more difficult for them to perform their jobs by failing to adequately discipline employees. Additionally, if the decision is made not to terminate an employee, will the workforce believe the employee was given favorable treatment? If the conduct is such that the workforce would expect the employee to be terminated, a significant morale issue could develop if the employee is not terminated. Is there a concern that the conduct in question will lead to similar behavior from others if not appropriately addressed? Moreover, the employer will want to examine whether it treats employees in different protected categories similarly to other employees.

On the other hand, if the employee is terminated, will the workforce believe the employer overreacted or treated the employee unfairly, creating a perception that this is not the type of place where people want to work.

The employer will also want to identify any public relations issues. Will taking no action against the employee reflect poorly on the employer, or conversely, are there potential public relations ramifications for moving forward? In significant cases, the employer may want to retain a public relations consultant.

Key Takeaways for Employers

Employment terminations can involve significant legal risks with a broad range of potential legal claims. Just as importantly, terminations involve significant non-legal considerations. As a result, the employer should consider both and seek legal counsel, as appropriate.