Termination time?

[ OCTOBER 19, 2009 - OKLAHOMA CITY, OK ] - Risk management is perhaps the ultimate human resources function. How does a company terminate an employee while minimizing the company’s risk of being sued? Although the risk of a wrongful termination suit cannot be completely eliminated, it can certainly be minimized with careful review of personnel documents and company processes.

Performance evaluations: Have they been done regularly and thoroughly? Do they truly reflect the employee’s performance, or are they shallow and trite? If 20 performance evaluations are reviewed, will the same phrases of praise and criticism be seen over and over again? If done correctly over time, performance evaluations will support the ultimate decision to terminate an employee who is performing poorly. Done improperly, it can lay the ground work for a lawsuit.

Employee discipline: If your company has a progressive discipline policy, has each of the steps been followed? If not, is there a reason why a step has been omitted, and, if so, has it been properly documented? Has the employee been given a probationary period in which to improve in clearly specified areas, and, most importantly, was the employee given clear objectives to obtain in order to continue employment?

Open door/grievance policy: Perhaps the most intangible element in any termination is the relationship between the supervisor or manager and the employee being terminated. Is there a way for your employees to express concerns, and, if so, has the employee utilized it? Has the employee been treated with respect? If so, although the employee may not agree with the decision to terminate, the foundation of mutual respect has already been laid.

The big picture: Review the employee’s entire employment relationship with the company. If the performance evaluations are good, and there isn’t a discipline history, what is going on? The violation may be of such a nature (an employee caught stealing from the company) that termination is the only option. But sometimes the situation may be less than clear. Review the protected classes: sex, race, age, disability and national origin. Are there underlying issues that may not have been properly addressed? Has the employee been engaged in protected leave under workers’ compensation, the Family Medical Leave Act or the Americans With Disabilities Act? Has the employee utilized the open door/grievance policy or filed a complaint against their supervisor that could be the source of the conflict?

After a careful and objective review of the situation, if you have the uneasy feeling that the supervisor or manager may be terminating in haste, step in and offer alternatives. Perhaps probation is in order, with set goals and time for improvement. A suspension (with or without pay) may be beneficial; it removes the employee from the work force and allows additional time to review the situation and make a sound decision.

Despite the many pressures in our work environment, the decision to terminate an employee is one that should be approached with great care. Developing and following a methodology by which your company considers each termination will help minimize your company’s risk of costly, time-consuming litigation.

Byrona Maule is a shareholder with Phillips Murrah P.C. in Oklahoma City, where she practices labor and employment law.