Guest Blog: Fisher & Phillips – Termination May Not Be The End

Webster’s Dictionary defines “termination” as “the act of ending” or the “end.” In the employment context, “termination” often is intended to be the end of the employment relationship. Perhaps the employee caused problems with co-workers, was an under-performer or violated company policies or all of the above. Although terminations generally are stressful and unpleasant experiences for all, employers hope that this change will eliminate problems.
Unfortunately, an employee termination can be the source of a new problem for the employer and the beginning of another relationship between the employer and the now former employee. The former employee may file a wrongful termination claim alleging that his former boss and employer did something wrong. The employer’s “wrongdoing” simply may be its failure to take consistent disciplinary action or the timing of the termination itself. While it may be true that the employee “should have been terminated him a long time ago” (or you should have never hired her/him, as is often lamented), bad timing and inconsistency often overshadow bad performance and conduct and increase the chances that termination will not be the end.
Many terminations result from a manager’s emotional response to a situation or series of situations. When emotions or the exhaustion of patience take over, risks associated with terminations increase. Some decision-makers do not recognize these risks while others downplay them based on an over-reliance and likely misunderstanding of the employment at-will doctrine. Under this doctrine, employees not employed for a definite time pursuant to an agreement can be terminated without cause or notice. On its face, this doctrine seems to make employers practically bulletproof because the vast majority of employees are employed at-will. The at-will armor is far from impenetrable, however, as almost all wrongful termination charges and lawsuits are filed by employees who were employed at-will. Raising the at-will doctrine as a defense to these claims generally goes no where fast.
Most wrongful discharge claims are brought in the form of a discrimination or retaliation claim or both. In a typical discrimination claim, the allegations are that the employer treated the fired employee differently than another employee who engaged in the same or similar misconduct or had he same or similar level of performance. The dispute in the lawsuit generally is not whether the fired employee engaged in misconduct or underperformed. Those facts are often conceded. The dispute often centers on the reason the employer did not terminate others who engaged in the same conduct. The former employee will allege that the reason for the different treatment was his/her race, sex, religion, age, etc.

By way of example, an employer fired an African American employee after the employee wrecked a company vehicle. On the surface, this termination decision seems like a no-brainer, especially since the employee was “at-will.” The employee never denied wrecking the vehicle, even when he filed his lawsuit alleging race discrimination. His theory was that the employer had not terminated non-African American employees who also had damaged company property. In other words, his allegations were that the employer treated him differently because of his race. Whether or not race was the reason for the alleged difference in treatment will be decided by a jury.

Retaliation claims take a similar route to the courthouse. Many employment laws include anti-retaliation provisions. For example, the FMLA, OSHA, the FLSA, workers compensation laws, the anti-discrimination laws, among others, prohibit employers from retaliating against employees who exercise their rights under these laws. The exercise of these rights is called engaging in “protected activity.” An employer that terminates an employee for engaging in protected activity is risking have to defend a difficult lawsuit. In the last few years, there have been more EEOC charges alleging retaliation than any other category of discrimination.

To illustrate how retaliation claims come to life, suppose you want to terminate an at-will employee for excessive absenteeism. With accurate records establishing attendance policy violations, this decision also appears on the surface to be no brainer. But what if that same employee had recently complained about harassment or discrimination or made a safety complaint or filed a workers comp claim or recently requested or taken protected leave? And, what if that same employee had a terrible attendance problem that went unaddressed before he engaged in protected activity or you have other employees with similar attendance issues that have not been terminated? These facts may suggest that something other than attendance was the real reason for the termination decision. If you still terminate the employee under these circumstances, the only no brainer is that you may have a chance to explain your thought process and rationale in a legal forum.

While not all wrongful termination claims can be avoided, employers can take some relatively simple steps to increase the chances that the termination will be the end: Slow down and think before pulling the trigger on a termination. Involve someone else, e.g. Human Resources, who does not an emotional investment in the situation. That person likely will have a more objective assessment and see things you may have missed; Ask yourself, is the action we are about to take consistent with our previous actions? Review what you have done in the past when faced with these facts or this situation or one similar to it. If termination has not always been the company’s response, then ask yourself if there is a legitimate way to distinguish this situation from the others. If not, termination should wait; Ask yourself, has this person recently made a complaint, taken leave, requested leave, been involved in an investigation of misconduct or done anything else that would qualify as protected activity? If the answer is yes, ask yourself if your reason for termination is on solid ground. Hint: if you are using a dust-covered rule violation or performance standard as the basis for the termination decision, you may want to wait; Ask yourself if the employee will be surprised to hear that she is being terminated? A termination decision should never be a surprise. Either the terminable offense is one that no employee could reasonably expect to get a second chance, therefore not a surprise, or the employer has diligently documented counselings with the employee that include the warning that continued non-compliance will result in further disciplinary action, up to and including discharge, thereby eliminating the surprise element; Treat the employee with dignity and respect during the termination process, the same as you would expect to be treated. Being a jerk because you can be may make you feel good but also may give a recently terminated employee a reason to seek revenge; Seek legal counsel before making a risky termination. The fee for this advice will be money well spent if it helps you avoid an expensive legal challenge.
With patience and consistent actions, and perhaps a little guidance, employment terminations can be the end of the relationship.

By Tillman Y. Coffey

Tillman Y. Coffey is a partner in the law firm of Fisher & Phillips LLP,  a national firm that represents employers in labor and employment matters.  (www.laborlawyers.com) You can reach Mr. Coffey by phone at (404) 240 4222 or by email at tcoffey@laborlawyers.com.