Terminations Always Involve Human Resources


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 is 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.