Labor & Employment Developments Blog

Here is a scenario I’ve seen too many times to count.  An employee is terminated and files a lawsuit.  The employer had a good reason but there are counter arguments.  For example, maybe the employee violated the attendance policy too many times but the employee has excuses or explanations for some of the absences that might have some merit.  Upon investigating the facts, I discover that the employee had a long history of workplace issues and shortly before termination had engaged in some truly bad conduct, e.g. stealing or sexually harassing a co-worker.  Inexplicably, the employee was given a pass or at least another chance after the truly bad conduct.

This scenario presents multiple problems for the defense of the lawsuit.  First, it undermines the legitimate reason for termination and creates the appearance of inconsistency.  If the conduct that lead to termination was so bad, why did the employer not terminate the employee for the worse prior conduct?  If the employer acknowledges that the decision to terminate was influenced by the prior bad conduct, why was the decision not made immediately after that conduct occurred?  The most discouraging part of the scenario is the likelihood that the termination, if it had occurred immediately after the truly bad conduct, would provide a strong defense case with little settlement value compared to the case arising from the later termination.  In essence, the employer has chosen to defend a weaker case over a stronger case by waiting to terminate the employee. 

Obviously, every situation is different and there may be good reasons to try to rehabilitate an employee with workplace issues.  However, employers should consider their options and not hesitate to act decisively when given the opportunity.  Always keep in mind one of the primary rules of employment law: No good deed goes unpunished.