THE STRONGEST DEFENSE AGAINST WRONGFUL TERMINATION SUITS

In the midst of employment-related lawsuits, many employers find themselves defenseless against wrongful termination claims filed by former employees. However, there are ways in which employers can be diligent in thwarting off legal liability. A large part of protecting themselves from lawsuits involves examining their current termination procedures and taking a proactive approach to decrease the probability of a wrongful termination charge.

The basic step toward that approach is simple – documentation. Implementing a paper trail, or written record of performance issues, can often help to avoid a lawsuit altogether. Such documentation is evidence in support of a variety of employment-related decisions.

Here are some best practices to consider when establishing a paper trail system:

1.      Training. Employers may want to reiterate company procedures regarding the discipline process to their front-line managers and supervisors. All managers should be reminded to always document any disciplinary action taken, including verbal warnings. Formal training will help managerial staff to follow discipline and termination procedures consistently across the board.

2.      Policies and procedures. In order to uphold standard workplace procedures, the rules need to be clear, concise and enforceable. Therefore, it is crucial to have a well-written employee handbook that broadcasts the company’s policies, procedures, and standards. Two key policies as they relate to discipline, termination, and paper trail are that of standards of conduct and corrective action.

3.      Performance appraisals. For further protection against legal troubles, employers should ensure that managers give candid and uniform performance appraisals. Giving “unblemished” performance evaluations without communicating significant performance issues can weaken a wrongful termination defense. Doing so may communicate to employees that their performance is in line with company standards. Therefore, it is important for managers to reflect the areas which need improvement and openly discuss their concerns during the annual performance review. To assist with this process, a Appraisal-Coaching Worksheet documents both the employee and supervisor’s collaborative approach in achieving performance standards.

4.      Progressive discipline. Are employees given written warning notices regarding their poor performance or conduct? If the answer is “no”, then employers should understand that progressive discipline procedures need to be implemented when an employee’s performance is sub-par. Written evidence of the employee’s performance or conduct, documentation of meetings in which managers communicated performance problems to their employees, as well as records indicating the corrective measures that were taken should always be stored in employee personnel files.

5.      Coaching logs. Coaching sessions are a good corrective measure when an employee’s performance is not meeting company standards. When problems need to be addressed, the coaching log is a useful tool for managers to successfully document the plan for improvement. This log demonstrates managerial support and effort to correct the employee’s substandard performance.

6.      Grounds for dismissal. When an employee’s performance becomes severe enough that it is affecting the business, employers may have no choice but to terminate the employee. When termination occurs, employers should appropriately document the reason for the termination and include concrete evidence in support of their termination decision, all of which should be stored in the employee’s personnel file. Doing so may be instrumental in your company’s legal defense should the employee claim wrongful discharge.

Terminating an employee should never be taken lightly, especially since the procedures you follow throughout the process may come back to haunt you. However, administering a paper trail system that documents unsatisfactory performance or conduct – no matter how “great” or how “small” the issue may be – can help to safeguard any employer. Consistent, written documentation may minimize your risks as well as protect your best interests.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls, SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. http://www.thewestongroup.com/.