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Handling Terminations of Employment

No termination should ever come as a surprise. This is a common mantra by labor, employment and human resource specialists alike, because it summarizes the topic of employment terminations so well.

Preparing to terminate an employee is no simple matter because the way an employer handles the employment relationship from the start all the way through this final event, can either set the stage for lengthy and costly litigation, or more preferably, end a relationship in an uneventful farewell.

Typically a termination follows conduct that is either so egregious, the employee is foolish not to expect a termination (e.g., theft of company property, assault on a coworker, engaging in sexual harassment), or results from a series of disciplinary measures where the employee was put on notice that continued poor performance or behavioral issues would result in further discipline or termination.

Certain misconduct may result in more immediate and severe consequences. For instance, in the event of workplace violence, sexual harassment, theft/dishonesty, or being under the influence of drugs or alcohol, it may be more appropriate to issue an immediate termination rather than use progressive discipline. Contrast this to intentional reduction in output, insubordination, or consistently late/incomplete work. These types of issues may not warrant immediate termination, but should still be documented as soon as a pattern of poor performance is noticed. Importantly, inaccurately stellar performance evaluations will do more harm than good when it comes time to defend a decision to terminate for “poor performance.”

While it may be true that the doctrine of employment-at-will is the fundamental employment relationship in the United States, meaning that without notice, an employee may quit at any time and for any reason, or an employer may end employment at any time and for any reason not prohibited by law, caution must still be taken when terminating an employee, and employers would be prudent to carefully evaluate their decision for any termination.

Managers and supervisors are often hard-pressed for time, but taking the time to clearly document misconduct or concerns will help demonstrate objectively, the reasons for discipline and/or termination.  Also consider whether policies and procedures have been explained to staff and consistently applied. Did the employer review similar incidents and apply consequences as they would for any other employee who engaged in similar misconduct? Was this employee properly trained and made aware of expectations? Were all employees, without regard to their protected class, treated the same?  If applicable, were they given the proper warnings prior to termination?

Some best practices in preparing for and conducting a termination include:

  • Ensuring credible documentation is in the employee file regarding negative performance/behavior
  • Discussing termination with direct supervisor(s) and HR
  • Being honest with the employee about reasons for termination but keeping the explanation to a minimum
  • Expecting the unexpected. Employees will react in all different ways, be prepared ahead of time for all possible scenarios.
  • Supervising the removal of personal effects
  • Scheduling a termination to minimize disruption in the workplace
  • Communicating the termination privately, but considering a witness, especially in terminations you think will be contentious on any level
  • Allowing the employee the opportunity to respond to any investigative findings or decisions for termination
  • Arranging for timely termination of access (e.g., email, computer logins, key access) to prevent sabotage
  • Communicating other housekeeping items to employees such as the continuation of benefits, when they can collect their belongings, and how you will logistically exit the room once the termination meeting ends
  • Acting swiftly and without hesitation once a decision has been made

Lastly, even those terminations that are well-documented and warranted may not be a welcomed action by employees, and the employer may want to consider severance pay in exchange for a release of claims. If an employee is litigious, a member of a protected class, has recently requested or taken a medical leave of absence (whether for physical or mental illness), filed a complaint regarding the workplace, or has disclosed a disability or need for some accommodation, employers should consider risk of a lawsuit for discrimination or retaliation. Inconsistencies applying rules to any employee will lend to a risky situation for the employer.

The EEOC prohibits consideration of race, religion, sex, national origin, age, disability or genetic information when making decisions to terminate employment.  Other laws also require employers to provide certain notices to employees following termination (e.g., COBRA) and may require that final pay and all reimbursements are made to an employee at the time of termination.

No matter the reason for a termination, employers should remember that the loss of a job could be detrimental to the employee, so it is always best to practice courtesy, compassion, respect and professionalism during the process.

What You Need to Know About Retaliation Claims

Since the United States Equal Employment Opportunity Commission (EEOC) issued its enforcement guidance surrounding workplace retaliation last summer, employers have been on notice to exercise caution when taking adverse action against an employee following protected activity.  Absent clearly documented evidence of a legitimate business reason for adverse action, like termination, such action taken by an employer following an employee’s participation in protected activity may be deemed as retaliatory, leaving the burden on the employers to defend their actions. Protected activity includes such things as:  requesting an accommodation; taking a leave of absence; or participating in an investigation.

Laying out a three-prong test, the EEOC tells us that in order to establish a claim of retaliation, employees merely need to show that: 1) they were participating in protected activity; 2) they suffered some kind of adverse employment action; and 3) there is a causal link between the activity and employment decision.

Unfortunately, even employment actions taken with no retaliatory motive and made in good faith may undergo scrutiny if an employee feels they are being punished. Therefore, while the first two prongs of the EEOC’s test may appear straightforward, the following should be considered as best practices in order to minimize risk and disconnect the link between protected activity and subsequent adverse employment action:

  • Maintain a written policy that is made available to all employees regarding zero tolerance for retaliation, including ways an employee may report actual or suspected retaliatory conduct.
  • Have written employment policies and consistently apply them.
  • Review policies and practices to ensure employees are not deterred from engaging in protected activity.
  • Train managers and supervisors on your anti-retaliation policy and how to handle employee discipline following protected activity.
  • Promptly and thoroughly investigate all complaints.
  • Accurately report job performance on performance evaluations. A below-average performing employee should not receive all superior marks. Use factual examples to support less than satisfactory ratings.
  • Clearly and thoroughly document business decisions your nonprofit may make that employees may consider as adverse (e.g., moving office space or eliminating positions).
  • Document job-related reasons for all actions, including poor performance or unwillingness to perform duties, to link adverse actions to poor performance rather than protected activity.
  • Ensure employees are aware of their job requirements by having up to date job descriptions, acknowledged by the employee.
  • Evaluate options in lieu of termination or discipline, including coaching, performance improvement plans, and additional training, especially if the adverse action is close in time to the protected activity.

Employers should also be aware that while retaliation may be as obvious as a termination, it can also be less recognizable, such as with overlooking an employee for a promotion, directing another employee to engage in harassment or retaliatory conduct, and criticizing or questioning an employee for filing a complaint.

Because the EEOC has linked adverse action to protected activity despite the passage of years between events, it’s critical for employers to always document and consistently apply policies.

While retaliation is prohibited conduct under state and local laws, employees also can find protection under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

 

*Note: While this article focuses on the employment relationship, retaliation is prohibited against job applicants and volunteers. 

Related Links:

The EEOC Enforcement Guidance on Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers:  Enforcement Guidance on Retaliation and Related Issues:
https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

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