Terminations- Getting Riskier

One of the things I advise clients and HR students is to not let poor performing or trouble-making employees stick around too long, and a recent article on CNNMoney.com has given us good reason. The article, entitled “Employees From Hell”, points out that recent court cases make it easier for problem employees to preempt or sue their employers for wrongful termination. For example, if an employee suspects that they are going to be fired they can claim sexual harassment, harassment, file an OSHA complaint, file a Department of Labor complaint, claim discrimination or any number of other complaints and then when the job action occurs they can claim the action was due to retaliation. (By the way, the job action need not be a termination. It can be a transfer or some other job change.)

Problem employees and their lawyers are getting much more savvy about how to do this. As the article states: “Roxanne Davis, who represents employees in discrimination cases as principal of Davis Gavsie in Los Angeles, is a member of an educational network through which attorneys meet to discuss the latest changes in labor law and how to use them to employees’ advantage. “There is a growing group of lawyers who are learning the field better and better, she says.”

So how do you avoid this problem? One way was pointed out in the article “The key, …., is to act quickly and resolutely.” I agree with this 100%. When asked the question by clients “What should we do?” my response is often “Fire them.” However, for many companies, particularly small ones, this is difficult to do. They often have no documentable reason to fire the person. Yeah, I know that employement is supposed to be “At-will”, but the realities of the world are such that without a good reason you are asking the termination to be labeled as the employee would like to have it labeled. So pay attention to poor performance. Document it and if the person fails to improve then ACT! Make it swift, make if factual, and make it happen. DO NOT let this behavior go on and on.

Additionally, don’t let a “progressive discipline” policy get in your way. Make sure that your hands are not tied by a policy that makes you adhere to a multi-step process. Have some “wiggle room” in the policy to allow you an “out” of immediate termination, if needed. And if you have one in place, make sure you follow it sooner than later. Delaying action gives the problem employee more time to act against you.

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