Every termination has the potential of leading to a lawsuit. Here are several things every employer should think about to minimize that risk.
1. Terminating an Employee for Absenteeism: Be careful not to terminate an employee for an absence that is protected under the FMLA, ADA or jury-duty. But if the absences are not protected, notify the employee, document the absences and make sure that the same rules are equally applied to all employees.
2. Terminating an Employee for Misconduct: Before the termination becomes final, conduct a thorough investigation including learning the employee’s version of what occurred. Consider placing the employee on a leave of absence while the investigation is occurring. And of course, document the entire process.
3. Terminating an Employee for Poor Performance: If possible, give the employee a chance to improve and give the employee specific goals and a deadline to meet them. If the employee improves, your company is better off. If the employee does not, you will have a clear business reason to let the employee go.
4. Resignations: If an employee resigns because of something that offended him or her at work, the resignation could later be considered a “constructive termination”. See if you can determine the basis for the resignation and ask the employee to reconsider. If you can fix the problem that is creating the employee’s desire to leave, you may save a good employee and prevent a future lawsuit.
5. Terminating an Employee for no Reason: Even though California is an “at-will” State, it is better to provide some legitimate business reason why the termination is occurring. This is especially true if the employee is a member of a protected class. Giving the employee the reason for the termination will prevent the employee from wondering why they were let go. Make sure the reasons are documented in the employee’s file.
Whenever the employment relationship ends, there is always the risk of a future lawsuit. Should you offer the employee a severance? Should you not? Each case is different. It is important to discuss all of these issues with a competent employment attorney. Remember, a short phone call now may prevent expensive litigation later. Let’s be proactive together.
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