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Monday, June 10, 2013

Bullet-Proofing your Employee Discharge Decision

By Tommy Eden

How does an employer (fairly and respectfully) fire someone without getting sued, or win the case if they do? A winning employer establishes written workplace rules for conduct, safety, appearance, etc. (Employee Handbook is the best place to give notice). When those established rules are not followed the employer takes action. First, by disciplining the employee in an effort to bring the person back in compliance with the rules or expectations. Second, by terminating a non-performing employee or one who has engaged in workplace misconduct. Harder than it sounds.

The following is a short checklist an employer may consider before terminating an employee so that you can prove "just cause" before any fact-finder; i.e. EEOC, DOL, Unemployment Compensation Hearing, Court, Jury, Arbitrator, etc. A “just cause” termination is the highest standard of proof that may be required in an employment case and steps more government agencies are looking at when a protected category employee is discharged. Meet it and you typically will win before any fact finder. Written proof that you followed each one of these steps may be a critical component to ultimately prevailing:

1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?
• Have the rules been given to the employee, either orally or in writing? (Updated Employee Handbook with signed acknowledgement preferred; training log is even better)
• Are the rules related to the employer’s legitimate interests, e.g., customer loyalty, productivity, safety, security?

2) Did you conduct a fair investigation before a decision was made?
• After learning of the employee’s misconduct, did the employer promptly conduct an investigation? (24-48 hours to get started is best)
• Was the employee notified of the alleged misconduct? In writing?
• Was the employee given a chance to respond to the allegations?
• Did the employer investigate any claims made by the employee?
• Was there substantial evidence, after the investigation, of a rules violation you can identity in the Employee Handbook?
• Did you examine the employee’s personnel file? Including evaluations?

3) Were you consistent in the manner in which discipline was administered?
• Have other employees been disciplined for the same or similar violation?
• If so, have they received the same or similar discipline?
• Level of discipline for classes of offenses clearly set forth in Handbook?

4) Did you first utilize progressive discipline?
• Is the proposed punishment reasonable in light of the violation?
• Will the discipline put the employee back in compliance with the rules (signed discipline receipt by employee is best way to show notice)?
• Will it encourage other employees to follow the rules?
• Should the employee receive a warning and a second chance for a minor violation or is a violation so gross as to require immediate discharge?
• Are there any mitigating circumstances, e.g., good work attendance, seniority, good disciplinary history, remorse by the employee?
• If the rule has not been previously enforced, have your given fair notice that will be in the future, i.e., righting the ship?
• Have you consulted an experienced HR professional or employment attorney before discharging a protected category employee?

5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? If so, congratulations you may have conducted a "just cause" termination and can sleep better at night.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901.