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Firing: Lay the groundwork

July 2013

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 White Papers
Firing: Lay the groundwork
The list of dangers that employers face in firing employ-
ees is seemingly endless. How can you safely fire a poor
performer whos pregnant, whos on medical leave, or
who just filed a workers compensation claim? What
about the employee with the perpetually bad attitude
who also happens to be trying to organize your work-
force or complaining about discrimination?
The quick answer is that no amount of education, train-
ing, or preparation can completely protect you and your
company in those and other difficult situations. But one
thing you can doand probably the most important thing
you can dois to lay the proper groundwork for firing
employees. That means giving truthful evaluations of
their performance at regular intervals, conducting fair
and thorough investigations before firing them for mis-
conduct, following your companys disciplinary proce-
dures, and documenting every decision you make every
step of the way.
Give frequent, honest
evaluations
Conducting regular performance evaluations offers a
lot of benefits, not the least of which are providing em-
ployees with guidance and feedback, improving their
performance, and increasing productivity overall. On the
other hand, failure to give regular evaluations, or to fill
them out honestly, can expose your company to all sorts
of potential discrimination and retaliation claims under
federal and state employment laws.
Why are performance evaluations so necessary?
Doesnt it seem like employees who arent doing a good
job would know it? Unfortunately, that frequently isnt the
case. In fact, studies have found that when asked to rate
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themselves on a given skill, the poorest performers con-
sistently gave themselves above-average grades. Their
ignorance prevented them from recognizing their own
mistakes. The point? The only way poor performers will
recognize their shortcomings and improve their perform
ance is if you tell them what theyre doing wrong and
teach them how to do it right.
A bigger concern than making sure you conduct regu-
lar evaluations is making sure theyre accurate. One of
the biggest (and most dangerous) mistakes employers
make is giving good evaluations to problem employees.
Theres so much wrong with this that its hard to know
where to begin. From a legal standpoint, the biggest
problem is that when you finally reach the point where
you can no longer put off firing an employee, he has no
reason to believe that youre firing him because of poor
performance.
Why should he believe you? Hasnt he always received
favorable evaluations? If he was such a poor employee,
then you would have told him, right? The only conclusion
such an employee can reasonably draw is that you had
some other, more nefarious reason for firing him. Maybe
his new supervisor is a feminist and wants to replace
him with a woman. Maybe youre mad because he filed a
workers comp claim or took time off when his wife had
a baby. Someone who thinks hes doing a good job (and
has no reason to think otherwise) wont have a hard time
coming up with some illegal reason for why he was fired.
Worse yet, why would a jury believe you? Which brings
us to the next benefit of giving regular and candid per-
formance evaluations: They can be an effective means of
preventing lawsuits and serve as valuable evidence at tri-
al that you had legitimate business reasons for firing the
employee. But only if they accurately reflect the prob-
lems you have had with the employees performance or
2/July 2013/Firing: Lay the groundwork
behavior. Watered down evaluations are too often the smok-
ing gun making it appear to the jury that an employee was
fired for some other reason than the employer claims.
Train your supervisors
If overly glowing evaluations are a problem in your company,
then chances are its your faultnot your supervisors. Many
companies provide supervisors with little to no training on
how to evaluate employees or exactly how important honest
evaluations are. The irony is that the reason most supervisors
give good evaluations to bad employees is that theyre afraid
employees will sue if they get a bad evaluation. They dont
understand that their strategy (or lack of one, depending on
how you look at it) has the exact opposite effect from what
they intend. Rather than reducing the risk that an employee
will sue, giving good evaluations to employees who dont de-
serve them can only turn out poorly in the endand that often
means ending up in litigation.
Another common problem is that in evaluating employees,
some supervisors start with the subconscious assumption
that all employees are entitled to the highest rating (such as
excellent) unless theyre truly incompetent. Ratings for in-
competent employees only drop a notch or two to average
or acceptable. Train supervisors to start with the assump-
tion that most employees are entitled to an average rating. If a
particular employee is truly wonderful or truly subpar, then his
rating can be adjusted from there.
Similarly, some supervisors routinely give the same ratings to
virtually all employees regardless of ability or attitude. Explain
why giving good evaluations to bad employees not only en-
courages them to sue but also deprives the company of its
best defense at trial.
Investigate if necessary
Before firing an employee for doing something illegal, unethi-
cal, or just plain wrong, you have to decide whether he actu-
ally did what hes accused of doing. To do that, you have to
investigate the allegations, somehow weeding through con-
tradictory statements from different witnesses and deciding
whos telling the truth. Its a difficult and thankless task, but
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a necessary one. And its important enough that you need to
make sure you entrust it to the best possible person for the
job. Its your choice whether to hire an outside investigator or
lawyer or assign the task to someone within your company.
But in any event, the investigator should have certain traits,
including:
A reputation for fairness and honesty
Good listening skills
Interviewing experience
The ability to write clearly and concisely
The ability to be a good, credible witness at trial
A good understanding of the legal ramifications of the em-
ployees allegations and your response
The ability to make difficult decisions, particularly the type
that could affect a coworkers career
Once youve chosen an investigator, you need to define the
scope of the investigation. Who should you interview? What
questions should you ask? How long should you take? Its
usually impractical to interview all your employees, so the best
place to start is with the employee who complained and the
one whos being investigated. They can point you to other em-
ployees or witnesses you should interview.
Here are some other basic rules to follow in all employee
investigations:
Be sure you conduct similar investigations into similar
incidents of misconduct. Otherwise, youre looking for a
discrimination claim.
If youre tempted to ask employees to take lie detector
tests, hold on! Federal law prohibits most employers from
requiring lie detectors in most instances (the one big ex-
ception is when you reasonably suspect an employee of
stealing).
You may not want the investigator to be the one who de-
cides what actually happened or what to do about it. In
that case, a separate decisionmaker has to be chosen. In
order for that person to decide what to do, he will need a
detailed report of the investigators findings. This report
will also be valuable evidence at trial.
If the investigator will also be the decisionmaker, he should
keep detailed notes of his interviews and the investigation
in general. A final report summarizing the investigation
couldnt hurt, either.

Follow disciplinary procedures
If your investigation concludes that an employee has violated
the law or your employment policies, you need to follow your
general disciplinary policies and procedures in meting out
punishment. The same disciplinary procedures should be
used for other types of problem employees as well, such as
those with performance, attitude, or attendance problems.
The two basic types of disciplinary systems are progressive
discipline and corrective discipline. Progressive discipline is
the process of imposing increasingly severe penalties on an
employee who fails to correct a problem after having been
given a reasonable opportunity to do so. It typically sets out
a series of disciplinary steps that the employer must follow
before proceeding to the next, such as one or more oral warn-
ings, written warnings, suspension, and termination. Correc-
tive discipline is similar but allows supervisors to select the
type of discipline based on the facts and circumstances of the
particular situation. A well-drafted corrective discipline policy
contains no absolutes such as that the company must or shall
take a particular action. Rather, it should state that managers
or supervisors may choose the appropriate discipline depend-
ing on the specific facts and circumstances.
These types of disciplinary systems serve many purposes,
including:
Ensuring that the appropriate discipline is applied (the
punishment fits the crime)
Ensuring that discipline is consistent for all employees
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Firing: Lay the groundwork/July 2013/3
Giving employees fair warning that they have violated
company policies
Giving employees a chance to improve
Creating a paper trail of evidence to show what the em-
ployee did and how you responded
If you dont currently have a formal discipline policy, get one.
What it says isnt as important as whether you consistently
follow it. Disciplining some employees but not others for the
same types of problems is just asking for a discrimination
claim.
Watch out for retaliation
Almost all of the federal employment laws prohibit retaliation
against employees who exercise their rights under those laws.
That includes the employment discrimination statutes as well
as other laws granting protections to employees, such as the
Family and Medical Leave Act, the Fair Labor Standards Act,
and many others.
In general, retaliation is any adverse action thats taken
against an employee for filing a complaint, supporting another
employees complaint, or otherwise asserting her rights under
a federal employment law. In the context of firing, the most
common type of retaliation claim involves an employee who
alleges she was fired for complaining about harassment or
discrimination. In addition, its illegal to retaliate against an
employee who:
asserts other rights, such as by asking for a reasonable
accommodation under the ADA or applying for medical
leave under the FMLA;
opposes an illegal employment practice (even if it doesnt
affect her); or
testifies, assists, or participates in an investigation, pro-
ceeding, or hearing under a variety of statutes.
Why talk about retaliation in a report about firing? Because
when youre firing someone, there are an infinite number of
ways for you to do something that looks like retaliation even
though it isnt intended to be. In an investigation, make sure
you instruct everyone involved not to retaliate against the em-
ployee who filed the complaint or any other witnesses. When
firing an employee as a result of other types of disciplinary
problems, be extra careful to dot all the is and cross all the ts
4/July 2013/Firing: Lay the groundwork

if the employee has ever complained about discrimination or policy in placeand follow itthat will take care of a big por-
asserted any other protected rights. tion of the documentation necessary to support your ultimate
decision to fire an employee. The same can be said if you
thoroughly investigate employee misconduct and memorialize
it through diligent notes or a final report.
Make your call
The bigger danger may be having supervisors who dont know
Before making a final decision to fire someone, its helpful to
to (or dont bother to) document their decisions. Make sure
step away for a moment to take a look at the big picture. Ask
you train them well and often. Then follow up to make sure
yourself if theres any chance that youre firing the employee
theyre documenting things as theyre supposed to. One way
for some reason other than the one you plan to tell her. Is she
to do that is to regularly review employees personnel files
being treated differently than other employees with similar per-
to see if they contain necessary documentationeverything
formance or misconduct deficits? If so, why? Is there anyone
from evaluations to disciplinary warnings. That also gives you
in the company who will be glad to see the employee go? If
a chance to make sure your supervisors are supplying suffi-
so, why? If the underlying reason for their feelings is discrimi-
cient detail in those documents to support their decisions and
nation or retaliation and they had any influence in the firing
that theyre not writing anything that could be interpreted as
decision, then you could be in big trouble.
discriminatory.
Perhaps the most difficult firing decisions must be made
when an employee has been accused of misconduct such
as harassment or theft. Witnesses rarely agree on what hap-
pened, and employees even more rarely admit the allegations Preserve records
against them. So that usually means that someone is lying.
Numerous federal and state laws require employers to keep
Your decision as to whos lying and whos telling the truth of-
employment records for a certain period of time. The federal
ten will determine which employees go and which ones stay.
employment laws typically require you to keep certain employ-
In making that tough call, all you can do is look at the same
ment records for anywhere from one to three years.
types of things that a jury looks at, including whether theres
any physical evidence on either side, the credibility of the wit- But stricter recordkeeping requirements apply after an em-
nesses, whether their stories are reasonable or just seem too ployee (or former employee) has accused you of violating one
off the wall, and so on. of those laws. Once that happens, youre required to keep
all records relevant to the employees claims until theyre
What if you make the wrong decision? A growing number of
resolvedeven if youre no longer required to keep those re-
courts say that when an employee claims he was wrongfully
cords under the laws general recordkeeping requirements.
discharged for misconduct, the issue isnt whether hes guilty
That includes such items as personnel records, records con-
but whether you reasonably believed he was guilty. As long
cerning the employee filing the charge (including current and
as your investigation was fair and your conclusion reasonable,
former employees and job applicants), and records of other
youll be protected from liability even if you were wrong.
employees holding similar positions.

As soon as you learn about an employees claim, assign a

Document everything
No matter how diligently you follow your disciplinary proce-
dures, how honest and fair your evaluations are, or how justi-
fied you are in firing an employee, it does you absolutely no
good if you dont have any evidence to support your decision.
That means you have to document what happened, who did
it, what you did about it, and why. If you have a disciplinary
point person to gather and preserve all relevant evidence. As
a backup, make sure the people responsible for disposing
of records know when an employee has filed a claim against
you. Tell all employees not to discard any records that may
be evidencewhether it would be favorable to you or to the
employee. Explain what types of records youre talking about.
That way, they wont inadvertently destroy records that are
relevant to the employees allegations.

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 Firing: Lay the groundwork/July 2013/5

Want to learn more?

For a more comprehensive discussion of firing, take a look at
BLRs Mastering HR: Firing. This report may be purchased
for $87 per copy. Please call our customer service depart-
ment at (800) 274-6774, or order on the web at http://store.
hrhero.com/mastering-hr-firing.

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