HR to Inform Workers of Their Rights Upon Termination
The California Employer Daily Newsletter states that in a CBS MoneyWatch article, columnist Amy Levin-Epstein said that it’s “often” a good idea to involve HR when terminating an employee. Good advice, but it doesn’t go far enough.
HR should always be involved in a termination decision.
Here is a list of the expensive problems that can crop up if HR’s not involved in the decision to terminate:
- No clear, documented basis for the decision. A supervisor or manager may “know” there is a problem, but in court it will have to be proven
- No investigation. When there is no investigation, it will look to factfinders and juries that the decision to terminate was casual and unfair.
- No evidence that the employee knew the rule that was broken. Juries think that this is a basic element of fairness.
- Failure to follow progressive discipline. This is not a law, but if your policies say you follow progressive discipline, you have to do it.
- Employee not given a chance to respond to an accusation. Sometimes there may be a good reason for the employee’s actions that led to the termination.
- Punishment not appropriate to the infraction. Actions taken quickly without thinking, and especially if the manager doing the termination was angry, are often too serious for the infraction.
- No consideration of length of service. A 20-year employee may be entitled to more deference than a 6-month employee.
- Punishment not consistent. If the punishment is not consistent with what was done in similar situations in the past, there needs to be a good explanation. How will that be explained in court?
- No analysis of potential for a discrimination claim. Is the employee being fired a member of a protected class? Caution may be advised if the basis for the termination is not well documented.
- No consideration of the potential for a suit alleging retaliation. If the person has recently filed a claim, requested leave or complained about safety or pay issues, there is a strong likelihood of a retaliation claim.
- Firing done in an unacceptable manner. For example: Not done in person, done with anger displayed or done in public.
- Employee not told the real reason for the termination. Supervisors and managers want to soften the blow, so instead of saying that the quality of the work is a problem, they blame “budget” or “the economy”. That comes back to bite when the person learns that you hired a replacement and alleges discrimination.
- Contractual agreements not honored. There may be employment agreements or union contracts that must be honored.
The bottom line is clear – never let managers or supervisors termination an employee without letting HR make a thorough evaluation of the decision. Sometimes, it is better to back off, avoid the lawsuit, and deal with the problem in a slower, but less risky, way.