One reason you hear lawyers and other HR professionals talk so much about documenting employee discipline and termination is the idea of consistency. There are countless benefits to consistent organizational decision-making. On a basic level, consistency is efficiency: by making sure you have the reason for a certain decision set forth in writing, you know exactly what to do when an equivalent situation occurs.
But make no mistake: we’re also talking about legal risk here. In the absence of a consistent practice, people deviate; every manager does things little differently. The problem with that is it’s ripe ground for a discrimination claim. Essentially, you’ve got two employees doing the same thing but potentially receiving unequal treatment.
Believe it or not, unequal treatment often occurs when managers are too focused on being nice. Many people tasked with carrying out a termination dread the idea of being the executioner, so to speak. As a result, they attempt to spare the employee’s feelings by bending or obscuring the truth, or by offering concessions and compromises they don’t have the authority to provide. These kinds of “compassionate” acts can come back to haunt you in a legal dispute.
The termination conversation needs to be candid.
The manager should tell the truth about about what is actually going on and why that person is being let go. In your heart, you might want to let them down easy, but you need to let your brain carry things out. Make sure the individual understands the real reason they’re losing their job—because if you give a false reason, even with the best of intentions, it may end up being used against you.
Imagine how things could play out during a trial. If the employee was terminated because of performance issues, but another reason was given, the plaintiff’s lawyer could say, “Supervisor, isn’t it true that performance issues had nothing to do with the termination?” The supervisor would then need to respond, on the stand, “Well, that’s not entirely true. I didn’t tell the truth about that but I really wanted to let her down easy. I didn’t want her to feel bad about herself.” In that scenario, the plaintiff’s lawyer is going to say, “Ladies and gentlemen of the jury, people don’t lie to cover up nice things. They lie because they’re covering up something they don’t want you to know.” So, be candid.
Don’t be vague, either.
This post is adapted from an excerpt of a presentation given by attorney Stephen J. Roppolo during our recent webinar, Termination Best Practices.
Steve is a managing partner of Fisher Phillips, and frequently counsels organizations on training procedures, litigation exposure, and everyday workforce concerns.
Thanks, Steve, for sharing your insights over the course of our webinar.
I often hear employers erroneously provide the concept of employment-at-will as an excuse not to share the gory details with an employee facing termination. Employers tell me things like, “I don’t need to give someone a reason for termination. I could even have a bad reason if I want, and let somebody go for whatever reason I care to.”
From a purely legal perspective, under most state laws that have employment-at-will, yes, that is technically true. But what that does is put you in a terrible fix, because the employee who doesn’t know the reason for termination will assume the worst.
That said, I’d rather have people not say anything than to give a false reason. I’ve had clients tell me that they misrepresented the truth to employees let go for performance issues. I ask these clients, “What did you tell the person? What you did put on the termination document?” And they respond with, “Well, I just told them that it wasn’t really ‘them.’ I’m sure they did the best they could, but that things are really slow, and so we had to let them go because the position is being eliminated.”
“If that’s what’s happening,” I tell them, “that’s fine, but I assume you’re not going to go out and hire somebody to take that role.” And then the client responds, “Well, yeah. Actually, I’ve got an advertisement for it right now and we’re just waiting to hear from the people who are interested in that position. It’s already posted.”
Of course, the real problem here is that the employee who was let go, whose position was “eliminated,” will now turn around and say, “Wait a second, they said my position was eliminated, but here they are filling my position. So… they must have lied to me. What’s the real reason then? Maybe it’s because I’m a woman, or African-American, or Muslim.” They will assume the worst and they’ll come out swinging with the Equal Employment Opportunity Commission, or in court.
Accountability is another potential issue.
I’ve had supervisors tell people getting fired, “I don’t want you to get the wrong idea—I think that someone else is upset at you. It’s not me. I’m not really irritated with you. In fact, if it were up to me, I wouldn’t fire you.” As you can imagine, this is a significant problem for employers. Any mistruth will be used against you in court.
Above all, the key is to identify the legal purpose for the termination. At the end of the day, that’s what you have to convince a jury of: What was the legitimate, non-discriminatory reason for termination?
In my experience, the real reason is rarely discrimination or retaliation. The problem is being able to show, consistently, what you did, and that the reasons are documented—so that you can prove that no one believes there was an alternative reason or motive behind the termination.
Looking for more from our Termination Best Practices webinar? Good news: you can now view the entire thing (eligible for SHRM & HRCI credits, by the way), on demand and for free, right here. And don’t forget to download our Termination Best Practices ebook!