Marisela is a human resources manager who is faced with a dreaded requirement of her job: the dismissal of a long-term employee. She realizes that resignations are an important part of her responsibility as an HR professional, but she’s dreading it (like most of us).
Resignations usually occur when one of two scenarios is involved:
- A summary layoff, which means that the employee has committed outrageous misconduct – think theft, embezzlement, forgery, and fraud, or extreme discrimination, harassment, or retaliation – requires immediate termination without warning or notice.
- An employee has violated the provisions of a final written warning.
In both cases, an investigation must take place and the employee must be given the opportunity to share their side of the story before a final decision is made.
Before deciding on a dismissal, HR professionals need to ensure that they consider the most important aspects that a plaintiff’s attorney would consider when evaluating a case to determine whether to bring a wrongful termination lawsuit: Has the employee been involved in any Wisely discriminated against, harassed, or retaliated against? Path?
“You should seek outside counsel in particularly difficult circumstances because cases often involve certain factual patterns and circumstances that make each situation unique,” recommended Rich Falcone (unrelated to the author), an employment lawyer with Littler Mendelson in Irvine, Calif . Even if you are 99 percent certain that an employee may not be able to say anything to change the final termination decision, Falcone has recommended that you seek the employee’s explanation and, if necessary, put them on paid investigative leave while you deal with the counter allegations , that should be justified.
“What you want to avoid seems to be to rush to quit before you’ve done your due diligence and completed and completed a thorough, timely, and impartial investigation,” said Falcone. “This is where employers often get into trouble in litigation.”
Pre-completion checklist
When considering whether to quit is appropriate, use a checklist to gather your facts to grasp the nuances of the case. Before recommending a termination action or meeting with the employee to see their explanation, check the following:
Most confidential
Pre-completion checklist
- Hiring date __________
- Term of office __________
- Age (with reference to the legal protection from 40 years) __________
- Ethnicity __________
- Gender __________
- Other protection status according to federal or state law __________
- Corrective Action Course ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
- Last evaluation / date of performance evaluation ______________________________
- Entire performance review history
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ - Open employee compensation claims: yes no
- Family and Medical Leave Act (FMLA) outstanding entitlements: Yes No.
- Disability Status: (Is the company currently involved in the “interactive process” of the Americans with Disabilities Act (ADA) with this individual, or is it otherwise providing an amended duty or other reasonable accommodation?): Yes No.
- Pregnancy: Yes No N / A
- Possibility of retaliation for filing a good faith complaint against the organization with an external regulatory authority (“whistleblower” protection): Yes No
- Age, ethnicity and gender of the supervisor (to counteract possible discrimination claims):
- How long did the supervisor manage this employee? ____________________
- Did the manager originally hire the employee? (In this case, it may be more difficult to prove a right to discrimination.): Yes No
Details of the final / most recent incident that could warrant termination, either as a summary crime or as a violation of the employee’s last written warning:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________ _______________________________________________________________________
_______________________________________________________________________ _______________________________________________________________________
Date of last written warning (if applicable): ____________
Type of final written warning:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________ _______________________________________________________________________
_______________________________________________________________________ _______________________________________________________________________
Previous practices and / or precedents: How have similar cases been dealt with in the past?
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Download:Pre-termination checklist.docx
With this short list of guidelines for practical investigations in the workplace, HR professionals can then objectively determine whether the employee’s actions warrant a cause for cause, said Eric Mackie, labor and employment attorney for Ogletree Deakins in the greater Chicago area.
“The type of ultimate incident that triggers the termination is extremely important. The more specific and concrete the violation, the stronger the justification for termination,” said Mackie. For example, if the latest incident is clearly in breach of the terms of a final written warning, be sure to stop it, he said. If the incident meets “summary crime” standards (meaning no prior corrective action is required as the single occurrence warrants immediate discharge) then you should be sure to move on.
In comparison, avoid de minimis incidents that appear insignificant or otherwise lack objectivity. For example, if the record you are relying on to justify a resignation looks like you are looking for a reason to fire the person, your credibility in court could be damaged, Mackie said. So could the validity of your decision to terminate the person.
“Likewise, do not inform the employee of the organization’s decision to quit without hearing the individual’s defense against the charges brought against him,” warned Mackie. “Too many employers seem to be too quick to judge and cross the finish line by firing workers without knowing the worker’s side or conducting a broader investigation based on new allegations made at the otherwise-ended meeting.”
Such bold and aggressive steps can get a company into hot water for denying the worker due process, severely weakening their case, or leaving them vulnerable to significant damage.
Labor lawyers suggest reducing the risk by creating and following a pre-firing checklist so that general questions are not overlooked during the investigative interview with the suspected culprit. Of course, a checklist cannot completely isolate an organization from labor liability. However, if minor pre-termination issues are overlooked while an organization is considering dismissing a person, it can have legal ramifications. For Marisela and her team, using a checklist will help make termination decisions feel tighter, and the team will have more confidence that many, if not all, of the broader considerations associated with a termination decision have been reviewed.
Paul Falcone (www.PaulFalconeHR.com) is a regular contributor to SHRM Online. He’s the CHRO at Los Angeles Film and Television Fund and the author of 101 Difficult Conversations with Employees, 101 sample descriptions to document employee performance issues, 96 great interview questions to ask before hiring, 2,600 sentences for effective performance reviews, the Performance appraisal toolkit and 75 ways for managers to hire, develop, and retain great people (HarperCollins Leadership, SHRM, and AMACOM books).
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