Disciplining and Firing:
   What to Know and What to Do

Firing is never an easy task. When one fires an employee, it is often a stressful situation for everyone involved. Business owners can reduce stress and anxiety about unemployment claims and lawsuits by establishing a procedure for documenting employee problems. This way, if the need arises, an employer could prove that it had a justified business reason for firing an employee.

One need not spend sleepless nights wondering whether to fire an employee whose performance is lacking or who has done some egregious or criminal act. There is no wiser choice but to fire an employee who disregards the codes of acceptable workplace conduct. An employer can only harm his business and put a damper on morale by allowing a truly bad employee to remain on the job.

In most instances, an employer is free to fire employees at will and without just cause. In other words, most workers have no legal rights to their jobs. This is because of the long-established legal doctrine of "employment-at-will" - an employer's right to unilaterally determine whether an employee should stay on the payroll. This doctrine stems from a case decided well over a century ago - Payne v. Western & Atlantic Railroad, 81 Tenn. 507 (1894).

The flipside of the employment-at-will doctrine is that employees are also free to leave a job at any time. Obviously, most legal battles are brought by former employees who want their jobs back or believe that they have been wrongfully or unfairly terminated.

Human resources personnel, small business managers and others who have the responsibility or authority to fire employees, are left wanting some guidance. However, there is no ironclad rule, as each case is decided on a case-by-case basis and often on the whims of a judge or jury.

Although the basic employment-at-will doctrine has been reinforced over the years, it has also been substantially limited by statutory and case law, including laws based on discrimination due to an employee's race, skin color, age, ethnicity, religious beliefs, disability, pregnancy or gender, which includes sexual harassment. Thus, employees have been given more protections from being fired if the reason is "suspect."

Unless the employer has a good reason for handing an employee a pink slip, the employer is more vulnerable to a lawsuit claiming the firing was wrongful and unfair. This is particularly true in today's workplace, where fired employees seem more prone than ever to initiate a lawsuit. Case law clearly evidences that it may be illegal to fire an employee if he or she can prove that the dismissal was unfair, discriminatory, in violation of clear public policy or if there is an oral or written employment contract, which provides that an employee can only be fired for cause and the employee was fired without cause. However, even the most hardnosed lawyers are not likely to take on a disgruntled employee's crusade when he or she was clearly fired because of his or her own serious misconduct or poor performance.

Immediate firing is almost always justified in the following situations:
   Failure to comply with the most serious company policies, rules or standards
   Disclosing company trade secrets to outsiders
   Behaving violently or threatening to harm others at work
   Engaging in criminal or illegal activity
   Being dishonest about significant workplace issues
   Endangering the health or safety of self or co-workers
   Possessing a weapon at work:
   Being under the influence or using alcohol or other drugs at work
   Sexual harassment
   Gambling on the job

There are situations far less serious than those mentioned above, where one, who is in a position to terminate others, should use caution. This behavior includes:
   Poor performance
   Refusing to follow instructions
   Having a persistent bad attitude
   Constantly being confrontational
   Being insubordinate
   Abusing sick leave
   Being habitually tardy
   Being absent excessively

Although asking a problem employee to leave is often an employer's best or only option, before taking aim and firing the employee, it would be wise to ask a number of questions to avoid legal issues and potential lawsuits that could later haunt an employer. Some questions to consider are: (1) Is there a written employment agreement; (2) Were there any promises made to the employee about the job or its longevity; (3) Could the firing be considered discriminatory; (4) Could the firing be construed as retaliation; (5) Have you required or encouraged any illegal activity on the job; and (6) Is the employee being fired as part of a larger shutdown of the facility?

And, always remember, there are some alternatives to firing: (1) training; (2) counseling; (3) reassignment; (4) warnings; (5) probation; (6) suspension; (7) pay repercussions; and (8) demotions. Still, bear in mind that, these alternatives, depending on the circumstances, may not be conducive to the employer or employee's needs or wants.

With the breakdown of the employment-at-will doctrine, disgruntled employees who have been fired now may have a number of legal weapons to claim that the particular termination was illegal, unfair, discriminatory or wrongful under the at-will doctrine. What employers can do to combat this is to show evidence that they treated the employee reasonably and fairly on the job through documentation.

As long as one takes the time and makes the effort to document the behavior in an employee's files, an employer is generally free to fire employees, who are guilty of these types of bad conduct. The key is to document all situations, both positive and negative, which describe an employee's conduct and performance.

Even if an employee is fired for good cause, one should still document the reasons for termination and place it in the employee's personnel file. The reasoning behind this rush to paperwork is that you can never be certain that even the most outrageously behaved employees will resist the temptation to later file a lawsuit or a claim with the Equal Employment Opportunity Commission ("EEOC") or some other investigative authority. Additionally, what is documented in writing is often more important from a legal standpoint than what is not documented. For instance, as long as you can point to poor performance, failure to meet company standards or refusing to follow instructions, a determination of sexual harassment, a record of habitual tardiness and excessive absence, or memos of poor performance in an employee's personnel files, one's decision to fire an employee should be relatively irrefutable. Without such documentation, a former employee may be able to successfully claim that a firing was wrongful and illegal. And a successful lawsuit can be quite costly!

Every business should have formalized policies, rules and procedures that must be enforced and all employees should be educated about such policies, rules and procedures. If the rules are not applied equally to all employees, or if an employer does not deal with or enforce infractions in the same manner, it may be accused of discrimination. Part of the procedure for enforcing rules should include documentation of the fact that you went over the infraction with the employee. You should consider making a form for this purpose, which includes a portion requiring the employee's signature, as well as any written comments he may have. If the employee refuses to sign or write down comments, it should be documented.

Besides documenting employee rule violations, one should also routinely document an employee's subpar performance or behavior. Documenting discipline also serves as armor in case an employer has to eventually terminate an employee for poor performance or repeated violations of company rules or policies. If the employee later files a charge of discrimination or alleges wrongful termination, the employer will have the proper documentation and paper trail to back up the employee's firing. The paper trail may even deter an attorney from pursuing a lawsuit or sway a judge, jury or even an investigating agency, such as the Equal Employment Opportunity Commission, to rule in an employer's favor. Of course, documentation will not make an employer invulnerable, but it will help establish that the action was taken for legitimate business reasons and not because of any malicious or discriminatory motives.

Clearly, the key to a successful firing is to document an employee's positive and negative performance and behavior. Establishing a paper trail evidencing proper termination is basically essential in today's society, where the long-standing doctrine of employment-at-will has been substantially limited by statutory and case law.

Sheri M. Rosenthal is an attorney with the Atlanta law firm of McManus, Smith and Benjamin, LLP and practices all aspects of civil litigation. Ms. Rosenthal may be contacted at [email protected].

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