December 2016 Bar Bulletin
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December 2016 Bar Bulletin

Ten Tips To Tidy up the Messy Process of Firing Employees

By Gena Bomotti
and Skylar Sherwood

 

Firing employees is uncomfortable and awkward. But it is often unavoidable and necessary.

When your client plans and executes employee dismissals promptly and properly, your client’s business benefits. Poor performers are removed from the workplace, employee morale often improves, and your client might limit potential risk stemming from negligent retention or other claims.

These 10 tips include some of the best practices all employers should follow on the road to a dismissal, from effective performance and behavior management to closing the loop on post-dismissal issues after completing a respectful termination meeting.

1. Don’t Rely On At-Will Employment

In Washington (and most other states), employment is “at will” unless otherwise agreed to by the parties. This means that either party may terminate the employment relationship at any time for any reason or no reason at all.

However, smart employers (and their lawyers) aren’t lulled into a false sense of security by that. They know that they should still have a clear, articulable reason(s) for a dismissal and that at-will employment doesn’t eliminate their obligation to ensure that all employment decisions comply with applicable federal, state and local employment laws, including those protecting employees from discrimination and retaliation.

If an employer doesn’t have a clear reason for firing or laying off an employee, or doesn’t clearly communicate the legitimate basis for the decision, it can be more challenging to defend against a claim that the decision was motivated by a discriminatory or retaliatory intent.

2. Comply With Policies and Practices

In addition to complying with the law, your clients should comply with their own applicable policies and procedures. If the employee files a discrimination or retaliation lawsuit arising out of the dismissal, the employer’s failure to follow its own policies and procedures likely will be used as evidence of unlawful intent.

Moore v. The Regents of the University of California1 is a recent textbook example of this. In Moore, the employer had a policy requiring that laid-off employees be given preference for reassignment or transfer, and had a right to recall to any job in the same classification that might become available after the layoff. After the layoff in Moore, the employer hired eight employees, but never considered the plaintiff despite her meeting the criteria for preferential treatment under the policy.

In reversing summary judgment and remanding for trial, the California Court of Appeal held that the employer’s failure to follow policy could be evidence that the reason the employer gave for the plaintiff’s layoff wasn’t the real reason and was instead motivated by discrimination based on the plaintiff’s medical condition.

3. Document Responsibly

Any employer who has sought employment advice has likely been advised to document performance and behavioral issues. But not just any documentation will do. Bad documentation can actually hurt an employer in defending against an employment lawsuit.

Attorneys should advise clients that managers and HR should always operate as though litigation is a possibility. Employers should assume that every one of their email messages about the employee will be disclosed during discovery, even those between the manager and HR. All non-privileged drafts of documents relating to the employee will be discoverable, including any corrective action; responses to or internal deliberations about accommodation requests; investigation reports and notes prepared by HR or other company or third-party investigators; performance reviews; and/or dismissal letters. At a minimum, all written communications and documents should be professional.

How can employers make documentation effective? Start by making the documents clear, concise, legible and thorough. Identify the specific conduct or behavior that needs to improve and provide recent examples of it. Give care and thought to performance feedback, counseling and reviews, and avoid inflated performance reviews and stock phrases (“He’s not a good fit” or “She’s not dependable”).


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