BEST PRACTICES: FIRING – MINIMIZING RISK AND AVOIDING LITIGATION June 25, 2013 Presented by: Tara A. Aschenbrand tara.aschenbrand@squiresanders.com Laura Lawless Robertson laura.robertson@squiresanders.com 39 Offices in 19 Countries
Agenda • Steps Before Termination – Single Employee • Termination Checklist – Single Employee • Termination Considerations – Multiple Employees www.squiresanders.com www.employmentlawworldview.com
Principal Types of Involuntary Employee Terminations • Reduction-in-Force • Performance-Based • Company Decision � Restructuring www.squiresanders.com www.employmentlawworldview.com
Steps Before Termination – Single Employee www.squiresanders.com www.employmentlawworldview.com
Why does this matter? • Statistics: � 2009: 93,277 Total Charges � 2010: 99,922 Total Charges � 2011: 99,947 Total Charges � 2012: 99,412 Total Charges − Retaliation = 38.1% − Race = 33.7% − Disability = 26.5% (increasing post-ADAAA) www.squiresanders.com www.employmentlawworldview.com
Termination Checklist • Justification • Discrimination-retaliation • Reverse discrimination • Defensible reasons • Policies or work rules • Oral statements • Progressive discipline • Public policy www.squiresanders.com www.employmentlawworldview.com
Justification • Have I identified the reasons for the discharge? • Are they lawful, non-discriminatory reasons? • Are they documented? � Employee records � Job description � Document warnings � Witness statements • Has documentation been provided to employee? • Have I contacted appropriate management? • Type of Employee � At-will employee? � Contract employee? � Implied contract? www.squiresanders.com www.employmentlawworldview.com
Maintaining Proper Documentation • When there is a problem, take action and discuss it with the employee as soon as possible • Document date, time, and nature of every warning, even oral warnings • Written warnings may (usually should) include that further violations may lead to “discipline up to and including termination” • Progressive discipline www.squiresanders.com www.employmentlawworldview.com
Maintaining Proper Documentation • Evaluate employees honestly, fairly, and accurately • Avoid overly subjective terms • A performance evaluation should not be a surprise to the employee: � Problems with inflated past performance reviews • Meet with the employee, review the evaluation, have the employee sign the evaluation, and allow employee to provide comments www.squiresanders.com www.employmentlawworldview.com
Discrimination/Retaliation – Is Employee Protected Based On: • Race? • Pregnancy or childbirth? • Sex? • Age (40 or over)? • Religion? • Safety complaints? • Ethnic group? • Filing a workers’ comp claim? • National Origin? • Sex harassment claims? • Ancestry? • Taking FMLA leave • Union organizing or other concerted activity? • Jury Duty? • Disability? • Prior discrimination claim? • Marital status? www.squiresanders.com www.employmentlawworldview.com
Retaliation • General trend toward broader protection against retaliation in employment context • Retaliation charges exceeded race charges filed with EEOC for first time in 2010, trend continues • Burlington Northern v. White (U.S. Supreme Court 2006): − “[Title VII’s] anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant … [T]hat means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” − Crawford v. Metropolitan Gov’t of Nashville (U.S. Supreme Court 2009): Title VII’s anti-retaliation prohibition protects employees who are witnesses questioned in an internal harassment investigation www.squiresanders.com www.employmentlawworldview.com
Reverse Discrimination • Can the employee credibly claim REVERSE discrimination? www.squiresanders.com www.employmentlawworldview.com
Defensible Reasons • Have “similarly situated” employees been terminated for similar conduct or pattern of conduct? • If employee is treated differently, are the reasons demonstrably legitimate from a business standpoint? • Is the timing sufficiently separated from a protected event to remove the risk of taint? www.squiresanders.com www.employmentlawworldview.com
Policies or Work Rules • Are there published policies or work rules that apply? • Are we following the terms? www.squiresanders.com www.employmentlawworldview.com
Progressive Discipline • Did employee get notice of what was wrong? • Did we give employee a chance to fix the problem? • Did we warn employee what will happen if problem not fixed? • Did we set a deadline? www.squiresanders.com www.employmentlawworldview.com
Public Policy • Whistleblower? • Statutory prohibition? • Other policy claim? www.squiresanders.com www.employmentlawworldview.com
Termination Red Flags • Criticism started after the employee “complained” about something • Termination is inconsistent with performance evaluations • The termination is a surprise • No documentation, or very little www.squiresanders.com www.employmentlawworldview.com
Conclusions of Risk Assessment • Whether to offer severance • Managing security and safety issues www.squiresanders.com www.employmentlawworldview.com
Termination Checklist – Single Employee www.squiresanders.com www.employmentlawworldview.com
Best Practices • The “Value of Getting the Story Straight”: Get direct answers from those who are in the “know” − Cat’s Paw Theory • Create a termination format to be used for: − Talking points − Action to be taken − Responding to EEOC/DOL/OSHA − Preparing interrogatories/discovery responses for lawsuits www.squiresanders.com www.employmentlawworldview.com
Best Practices • Door A or Door B Approach � Provides an opportunity for employee to have a “voice” in what action will be taken � Offering an alternative position/demotion may be more palatable to the individual rather than having no job at all (especially in this economy) � If feasible, allowing the employee to “elect” his/her own option (and having a signature to prove it) may assist the Company should the need arise to defend claim later. www.squiresanders.com www.employmentlawworldview.com
Best Practices • Exit Interviews � Have two people present � Get the bad news now (if any) rather than later (work injuries, alleged discrimination, unpaid business reimbursements, potential complaints such as those known as “whistleblowing”) − Stay consistent on reason for termination � For those who have restrictive covenants, remind them of their post-employment restrictions − Consider severance agreement adding post-employment restrictions www.squiresanders.com www.employmentlawworldview.com
Practical Tips for Protecting the Workplace From Departing Employees • Don’t be caught off guard: Put in place procedures for handling employee departures • Ensure former employee has no access to the employer’s facilities or computers, including any type of remote computer access; no right to re-enter • Ensure the prompt return of all company property and proprietary information � Computer Fraud and Abuse Act, 18 U.S.C. § 1030 • Consider retaining security personnel to reduce the risk of workplace violence www.squiresanders.com www.employmentlawworldview.com
Termination: Informing the Employee • Be firm, honest, and brief � Inform employee that he/she is being terminated • If appropriate, state the reason for termination � Be clear and concise � Do not apologize • Do not make any contrary statements � Pretext � Avoid complimenting or counseling the employee • Ensure compliance with applicable laws, such as COBRA, disability, benefits • Termination pay www.squiresanders.com www.employmentlawworldview.com
Restrictive Covenants • Remind Employee of any post employment obligations: � Non-Competition: Prohibits a former employee from competing against employer for a specified period of time within a specified geographic area � Non-Solicitation: Prohibits a former employee from soliciting an employer’s customers for a defined period of time � Non-Recruitment/Anti-Piracy: Prohibits an employee from soliciting the employees of his or her former employer for a defined period of time � Confidentiality and Non-Disclosure: Protects proprietary and confidential information, including trade secrets, pricing, customer information, etc. www.squiresanders.com www.employmentlawworldview.com
Enforcing Restrictive Covenants: Reasonableness? General Standard A post-employment restriction is unreasonable if the restraint is greater than necessary to protect the employer’s legitimate, protectable interest or if that interest is outweighed by the hardship to the employee and the likely injury to the public. www.squiresanders.com www.employmentlawworldview.com
Recommend
More recommend
