Labor & Employment Developments Blog

A significant generator of employment litigation is poorly handled terminations.  Whether your approach to litigation is to fight on principle or settle cases, a well executed termination will minimize settlement values and/or make a case more defensible.  Of course, it is impossible to eliminate the threat of litigation no matter how well you do things but over the long haul, doing terminations the right way is a sound strategy to limit exposure.

This podcast mini-series - Termination Done Right - will cover the basic strategies businesses can employ to limit their exposure in employment litigation.  Part 1 of the series covers the common mistakes employers make related to termination of employment and how to avoid them.

Mistake #1 - Bad Hiring:  In most cases, a bad hire is a bad employee and a bad employee will ultimately need to be terminated.  This cycle can be avoided by making good hires.  Often, it is as simple as following the hiring procedures you have in place.  Unfortunately, what frequently happens is that managers desperate to fill a spot hire the person who wants the job rather than the best person for the job.  This is a mistake - an easy way to avoid issues with termination is to hire employees that you won’t need to terminate.

Mistake #2 - Timing: Employers often move too fast or too slow in the termination process.  Employees should never be terminated on the spot - managers need to gather and evaluate information and sometimes cool off before making a decision.  However, taking too long to make a decision and giving employees chance after chance can also be a mistake because it minimizes the seriousness of poor conduct or performance and makes it appear that the employer is willing to tolerate it.

Mistake #3 - Poor Documentation: Here is an employment law rule - if it is not in writing, it didn’t happen.  Nowhere is this more accurate than in the context of documentation supporting a termination decision.  It is critical for employers to have complete and accurate documentation that fully supports their decision making.

Mistake #4 - Poor Execution: The actual handling of the termination is another problem area for many employers and can even be the source of separate employment law claims apart from those related to the termination decision.  Employers need to be clear and honest with employees about the reason for termination but also handle terminations as professionally and compassionately as possible. 

These issues are covered in more detail in Termination Done Right - Part 1. 

You can listen to the podcast episode here.

Termination Done Right - Part 2 will cover proactive steps for employers to take to protect themselves from potential claims related to termination.