News & Insights

Managing Terminations and Avoiding Liability
February 12, 2016
by Robert Conte


South Bend / Mishawaka, IN – If you do not believe that improving your human resources practices is a good thing to avoid discrimination claims, think again. In an employment environment that encourages good policies and practices, there can also be subtle evidence or an undertone of discriminatory animus. If that exists, your organization may be inviting trouble. So how does an employer improve job performance, carry out discipline and even terminate employees for questionable job performance? Following a few simple, but time tested rules, may be the answer.

  1. When terminating an employee, always be open and honest. Tell the truth and do not deviate from the facts. Vague and subjective reasoning, if challenged, will be difficult to defend. Vagueness is often compounded by conflicting reasons. State your case and stick to the facts. When terminating an individual, state with specificity the reasons for the employment action and support your actions with facts. Do not sugar coat the situation or diminish the decision by choosing a lesser action. Contradictions generally create employment related issues. Tolerating unsatisfactory performance will, in the long run, work against your interests.
  1. Create an employment file that is objective and fact oriented. Inconsistency in relation to any performance or disciplinary matter could prove fatal to your case. If an individual is a poor performer, do not reward him or her with a mediocre evaluation, or worse yet, a raise, this sends a confusing message about what is really going on. To be successful in this endeavor, employers must create a record of objectivity that can be substantiated with verifiable facts. In the end there is only one right question: does the record support/justify the intended employment action?
  1. When dealing with job performance discipline or evaluation issues, and we said it many times, document then document some more. Make sure you have a documentation plan in place, a mechanism whereby you can objectively evaluate and measure specific criteria that will allow you to create a fair and consistent evaluation process. Anything short of doing due diligence will likely diminish and skew the results. Having a well-organized plan will help you objectively evaluate employment actions that could be viewed as unfair, or attempt to reallocate blame. In the long run, documentation will prove to be invaluable.

When issues related to employee discipline and performance arise in your workplace, seeking the advice of an attorney who understands the complexities of labor and employment law is recommended.

The content of this article is for informational purposes only, and does not contain, nor should be construed as containing, legal advice.