Employees leave for many reasons—sometimes voluntarily, and sometimes not. Whenever a company lets an employee go, there is always a chance that the employee will claim that his or her termination was somehow wrongful, i.e. that it was motivated by discriminatory or retaliatory reason. To defend against such claims, employers must generally demonstrate that the company had a legitimate business reason or reasons for the termination decision, and that the company took all appropriate steps before reaching that decision. When employees are discharged due to performance issues, a company’s discipline and performance management procedures, as well as the documentation of such procedures, are of the utmost importance. When these procedures are undertaken correctly, they can be vitally helpful. However, when undertaken poorly, they can severely hinder an employer’s position in litigation and can even be the catalyst that leads to a claim in the first place. Implementing proper best practices when looking to discipline and potentially terminate employees helps protect the company and provides one of the best defenses against employee claims.
Letting an employee go in a way that minimizes legal risks to a business involves more than just a simple, “You’re fired.” There are many techniques that employers can utilize to protect themselves against litigation risks in the future. Furthermore, many states have procedures that need to be followed when an employee is terminated. These rules and regulations can mandate things such as documentation that must be given to the employee at termination, such as unemployment compensation paperwork, or when an employee must receive his or her final paycheck. It’s essential that companies know and understand their obligations under the applicable federal, state, and local laws so that they can implement the best termination practices in order to avoid lawsuits before they start and provide defenses if litigation should occur.
Discipline and Performance Management
Employees who are let go are more likely to sue when the termination comes as a surprise. In cases where employees are not meeting expectations, employees need to be properly informed and given opportunities to improve. By following recommended best practices in disciplining and performance managing employees, employers can limit their risk of claims from employees and significantly improve their standing and potential defenses should claims be brought.
Our lawyers are experienced at helping clients get through difficult employee performance management and termination situations. From dealing with toxic employees who need to be separated, to instances of suspected substance abuse on the job, our employment attorneys are skilled at navigating challenging circumstances and providing business-savvy guidance regarding your obligations under the applicable employment laws. Our services include:
- Training for management on performance management actions and documentation
- Reviewing performance memos and other related documentation, and providing advice on appropriate language and messaging
- Providing on-call support via phone and email during performance management/termination situations
- Advising how to conduct termination meetings
- Drafting severance agreements where appropriate
- Reviewing/revising/drafting employee policies regarding performance expectations, employee discipline, and discharge
- Providing expert analysis on the strength of any potential legal claim an employee could assert and proposing potential defense
- Assisting in the implementation of a values statement outlining attitude and behavior expectations
A vast majority of employment litigation arises when a former employee claims they were let go improperly due to their age, race, gender, disability or other protected category rather than for the company’s legitimate business reason. In other cases, a current employee could claim that his or her performance management was done for a discriminatory or otherwise wrongful reason. Whatever the situation, our litigation team is prepared to address any matter at the first inkling that a problem is afoot. Our attorneys have extensive experience defending employers against a variety of claims in all types of forums and situations. We work with our clients to gather all necessary background information and documents to strategize an effective defense against the claimant’s allegations. Our services include:
- Defending wrongful termination and related employee claims against your business in state and federal courts and agencies
- Addressing all types of discrimination allegations, including: age, race, religion, gender, disability, pregnancy, national origin, etc.
- Assisting with internal investigations of current-employee claims
- Connecting you with industry experts, such as outside investigators, where necessary
- Representing your company in alternative dispute resolution forums, such as mediation or arbitration, to resolve such claims efficiently and cost-effectively