The Ten Commandments of Termination

As an employer you are eventually going to be faced with the turmoil of firing an employee-often a manager's and business owner's least desirable thing to do. Here, we examine guidelines for termination to help prevent a former employee's angst from ending up in a courtroom in a wrongful termination lawsuit.

Generally in this country we have "at will" employment; that is, we hire or fire a person at any time we want to with or without reason or even logic. Similarly, employees do not have to give notice or even a reason why they are leaving your employ, they can walk out at any time for any reason. Employers across the country maintain their right to employ at will, but terminating someone under that premise will be the riskiest firing they'll ever do.

Employees hired under a contract are contracted employees, and as such the guidelines of that contract must be followed. If an employee steps outside of those guidelines, he or she would be considered in breach of that contract; in other words, they can be fired for just cause only.

An implied contract results from past actions, company policies, and everything you ever said to that employee. This is an increasingly complicated area as employers and their former employees are spending more and more time in the courtroom letting juries decide whether or not there was an implied contract.

Allen H. Weitzman, a partner at Proskauer Rose LLP, heads the labor and employee practice in the firm's Boca Raton office. Weitzman often represents employers before administrative agencies responsible for the enforcement of many anti-discrimination laws. He offers these "commandments" on how to avoid litigation when terminating employees.

1) Have a reason for the termination, provided your reason does not violate a federal or state law or, in some states, a public policy. For instance, beware the employer who fires an employee returning from a maternity leave. Weitzman says the court will examine her performance before the leave and argue that she was doing a good job before, what could have changed? A jury will suspect the reason, the Equal Employment Opportunity Commission (EEOC) and various state agencies that investigate such violations expect a reason. Indeed, it becomes the fundamental question in such cases, as Weitzman points out, the question is asked by the EEOC on their boiler-plate complaint form.

Your company will likely be asked to produce any manuals, policies or documents that show that the reason is one that the company has stated will be grounds for termination.

2) Follow your rules that you as the employer have set forth. If an employee is fired, the question will be asked as to whether or not the company followed its rules. If there are rules in existence, they need to be enforced equitably across the board.

3) Watch out for protected classifications including but not limited to women, personnel over 40 years of age, people not of American origin, or those with disabilities. These, say Weitzman, are the obvious cases. "We have to worry about whether a call will be made that the reason for termination was illegal discrimination." Others include "whistle-blowers," who are protected under federal law; those complaining about OSHA; those who complain they're not getting their overtime; those who take family leave; accommodations under the Americans with Disabilities Act (ADA); those returning from jury or military duty; if a person is about to vested under ERISA retirement; or those employees involved in union organization.

4) Document the reasons for the discharge even though there is no legal requirement to do so, because the EEOC will ask you to produce documentation and juries want to see those documents. "Juries get suspicious when something as important as a termination has no document backing it up, and because most of corporate America is documenting these days, the absence of documentation sets off an alarm," says Weitzman.

Documentation should be in the form of warnings, etc. Make sure you have all the documentation; supervisors sometimes keep their own files apart from those in the personnel office.

5) Ensure consistent treatment because consistency is the essential key to non-discriminatory termination decisions. Rarely, however, are two situations exactly alike. For example, when an employer fires someone for fighting on the job, the employer can enforce the "no fighting" rule and fire the employee, provided of course there is a "no fighting" policy in effect at your company. But the question will be asked whether there is anyone else who ever fought who was not fired. Into this mesh comes the horseplay scenario or a self-defense explanation. If the person who was not fired was a white male and the person fired was a black male, "the question we ask is: were you consistent?" Weitzman says, and can certainly lead to an anti-discrimination lawsuit. He also stresses "the importance of consistency in writing up evaluations and job appraisals."

6) Consider reasonable accommodations for an employee in unusual situations, such as special accommodations under the ADA. If there is a reasonable accommodation that would not cause undo hardship, Weitzman recommends making that accommodation.

If an employee asks for an hour change for religious observance or has a religious inability to work on a Sunday, the employer should attempt to make a reasonable accommodation in that employee's attendance schedule.

Weitzman says, "Juries look at terminations to see whether the person was treated fairly and confuse the concepts of discrimination and fairness. Particularly in age cases where an employee is not working up to his previous performance level; juries want to see you walked the extra mile with that senior employee before termination. I recommend that before terminating somebody that an employer should see that the 'doctrine of compassion' is applied."

7) Ensure availability of credible witnesses that can be relied upon to back you up. If the termination was the result of a customer complaint and it goes to trial, are you willing to involve the customer, despite the possibility of hurting the company's relationship with that customer? Or is the supervisor trying to avoid blame on himself by passing it off on the employee? Suppose the supervisor's own future with the company is shaky and that person will not testify favorably? Will the witness be believed by the jury when the he tells his story? The decision maker needs to assess whether the person will be available and if the person's story will stand up at trial.

8) Beware of stray remarks. Weitzman call this "the smoking gun" in employment litigation. Typical examples of stray remarks are found in performance evaluations that are often intended as asides but carry much weight in court: "Now that John's older he seems to be slowing down; he's not as fast as he was when he was younger." Or, "M