Navigating the Treacherous Waters of Employee Termination

Fisher & Phillips attorney Sara J. Fagnilli

By Sara J. Fagnilli

To fire or not to fire, that is the question, and while it might have been an easy one for Shakespeare, it will rarely be an easy question for any employer to answer.

While every situation presents its own unique challenges, the single most important rule that any employer should follow when considering firing an employee is to be exceptionally careful and to take the time to think through the steps.

Not only are you about to affect someone’s livelihood, but the company also generally has a significant investment in the employee, not to mention a significant interest in avoiding the aftermath of potential litigation and/or administrative proceedings that can follow a termination.

So what do you do . . . and how? Developing and maintaining a checklist to use in these situations can be important and extremely helpful to navigate all the potential steps and issues along the way.

Investigate the nature of the violation

Immediate discharge for certain misdeeds, such as acts of violence, is fairly clear. Other misconduct however, might lead to a more difficult analysis. The key is to give careful consideration to all of the facts and circumstances before making the ultimate decision.

It is critical to ascertain what happened and conduct a thorough investigation into the event in question. Asking the famous “5 Ws” – who, what, when, where, why – and how, of course, sounds elementary, yet many employers act without knowing all sides of the story.

Knowing the complete facts of a situation is essential to making a good decision. The person assigned to investigate the event should be someone in a fair and impartial position, who can be objective in reviewing the events. If there are other witnesses or employees involved in the event, document it through written statements by those witnesses.

Examine the rule that was broken

One of the best supporting beams in a termination house is a clearly articulated and written set of work rules that you can be sure the employee knew about and understood, preferably in an employee handbook. You must be able to demonstrate that the rule was important to the operation of the business, the harm caused by the employee in question failing to follow the rule and your ability to defend the rule.

It often is difficult to say any one “rule” is grounds for discharge, but it will be easier to substantiate if the rule was clear.

For example, a time or two of violating the policy against excessive personal cell phone calls during work hours could cross over into a dischargeable offense under a clear progressive discipline policy.

If relying on progressive discipline, be sure that there is a logical, fair and well-documented progression of disciplinary action noted in the employee’s file. The fact that the employee knew the progressive steps were being documented also should be noted. It should come to no surprise to the employee that his/her action or inaction could lead to discharge.

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Allow the employee to be heard

Be sure to get the employee’s version of the event so that he or she has notice and the opportunity to be heard (in the case of a union employee generally by contract). The employer must consider and weigh the employee’s explanation and whether any alternatives to discharge were considered and why they were not ultimately chosen.

You must consider the employee and his or her reaction: Who is this person, what is his or her history with your company, and what are the chances he or she might retaliate?

There are at least 12 different grounds an employee can potentially use as grounds to file suit. These include discrimination claims based on nine different factors. Many federal and state agencies also become involved in the regulation of the employment relationship. Claims of retaliation are the fastest growing category of EEOC charges and lawsuits.

Be sure the action to terminate a particular employee is consistent with prior action concerning other employees in a similar situation. If an exit interview is conducted, be sure that the discussion is consistent with the investigation, and document any conversation as well.

Document everything related to the case

One of the most important steps to follow when making the decision to discharge an employee is to ensure that all the information on the “5 Ws,” as well as the company’s decision in the case, are well documented.

Careful documentation is crucial, so if further proceedings occur there can be no question of what was done and why. This includes any information obtained from the employee and witnesses (if any) during the investigation. In the event litigation does follow, the employer will have documented exactly what they did and why at the time the events occurred, rather than trying to rely on peoples’ memories of the event at a later time.

While no employer can control what steps a discharged employee might take after termination, it pays to be prepared and know that the decision making process was complete, fair and thorough. Finally, when the facts are complicated or inconsistent, and they usually are in a termination matter, consult with your legal employment counsel as early as possible in the process as they can help guide you through difficult territory.

In termination cases, the old adage, “an ounce of prevention is worth much more than a pound of cure,” couldn’t ring more true or more cautionary.

Sara Fagnilli is an attorney with the law firm Walter | Haverfield in Cleveland. She a member of the firm's Labor and Employment, Municipal Law, Public Law and Litigation practice groups. Her experience includes federal and state court litigation and appellate practice in the areas of construction, competitive bidding, easement acquisition, eminent domain, employment labor negotiations, grievance and arbitration, contract drafting, employee benefits, finance, insurance, environmental enforcement, unemployment, workers' compensation defense and administrative appeals. Contact her at sfagnilli@walterhav.com or at (216) 928-2958.

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