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8 critical legal questions to ask before you terminate

by RICH HENSON | September 7, 2015

Copyright 2015 Resourceful Manager

Firing someone is more than just an uncomfortable task. It can be a hazardous walk
through a legal minefield.
(In case you dont think so, the headlines in the graphic above are all from
the past few months. Pretty frightening, eh?)
Most companies work hard not to discriminate. They try to adhere to the dozens of
workplace rules and regulations.
But there is much potential for missteps, which is one reason why unlawful
termination lawsuits increase year after year.
While most are without merit, they can still be expensive.
Throw in lost staff time and productivity, and the real cost is much higher.
So, lets assume the termination decision has been made
That means: The employee violated a specific policy or failed to meet clearly
outlined performance standards and the situation was serious enough to warrant
You have the policy or performance standard in writing.
You have solid documentation of when and in what manner the employee violated
the policy or failed to meet standards.
At that point, after you decide to let someone go, but BEFORE you actually do it,
you should ask and answer these eight crucial questions developed by HR
consultant Hunter Lott.
Weve added some details to explain why these legal termination questions are
No. 1) Has the employee complained of harassment or unfair treatment?

This is a pretty common phenomenon many underperforming or misbehaving

workers try to deflect attention from their personal issues by claiming theyre being
unfairly singled out.
No matter how thin the claim, it cant be ignored. It must be investigated
quickly and completely, and a formal decision made on the validity.
All aspects from complaint to final decision must be thoroughly documented.
Solid documentation is often enough to dissuade a lawyer from filing an unlawful
termination lawsuit on an employees behalf.
No. 2) Has the employee recently returned from, or applied for, Annual or medical
Timing is crucial here. Say an employee notifies his/her supervisor he/she going to
take 12 weeks FMLA leave to care for an ailing parent/himself or any personal issue.
If shes fired a week or two later, the proximity of the firing to the leave request
is going to look highly suspicious to any court.
Same goes for workers just coming off leave. Thats not to say you can never fire an
employee soon after he or she returns from leave. There are cases where the
employer doesnt discover performance issues until that employees job duties have
to be covered by someone else.
So the simple fact of requesting or returning from annual or medical leave is not an
impenetrable barrier to dismissal, as long as the employer has honest, airtight
documentation of a policy violation or performance problem.
No. 3) Is the employee about to vest in a benefits plan or involved in union
organizing activities?
This question covers two of the most sensitive workplace issues employers face:
compensation and union activity.
Employees are on extra alert when it comes to money whether its pay or a
retirement contribution.
If a worker gets canned just before reaching a vesting date, can you blame him for
thinking the company is getting rid of him to save money?
And hell easily find a lawyer who agrees.
Also tread carefully when firing an employee whos had any type of role in
unionizing even if its just attending a meeting.
Union leaders are generally very familiar with legal protections provided by the
National Labor Relations Act.
No. 4) Has the employee complained of wrongdoing or a safety issue?
Problem workers can claim company wrongdoing to stir the pot and hopefully avoid
being held accountable for their actions.
Employers need to be in a position to prove the claims are baseless or, if they
were valid, how your firm took steps to correct the situation.
Make sure you have thorough paperwork to bolster your position.
No. 5) Were any promises made to this person either verbally or in writing?
It happens often: A manager tells a new hire what great expectations the
organization has for her and the heights to which it is anticipated she will ascend.
Its normal, motivating conversation designed to fire up a new employee. But its
just as likely that the employee interprets those remarks as promises.

Unfortunately, sometimes the people who seem most likely to succeed do exactly
the opposite.
When they are terminated, they invariably bring up the promises senior
management made when they came on board.
If those promises are in writing, the employer is pretty much stuck with trying to
honor the agreement somehow to avoid litigation.
If the promises were verbal, then its managements call as to how the dispute is
Sometimes its simpler to make a token settlement with the terminated employee in
order to fend off a potentially expensive lawsuit.
No. 6) Were any requested accommodations denied to this employee?
This can really be a thorny issue made even more so by the broadening definition
of disability under the Americans with Disabilities Act.
If the answer to this question is yes, itll probably be worth revisiting the
request and the companys response.
Under the rules, both Equal Employment Opportunity Commission and the courts
are looking more closely at whether the employer has engaged in an interactive
process in weighing an employees request for an accommodation and then
deciding whether such an accommodation is reasonable.
If you review a denied request and arent confident you fully engaged in the
interactive process, you could have a problem when it comes to termination.
If youve got questions about your exposure under the Americans with Disabilities
Act, its probably appropriate to run this termination decision by your lawyer.
No. 7) Have other employees been terminated for similar offenses/similar subpar
If the answer to this one is no, proceed with caution. Consistency is crucial.
If a terminated employee can point to another worker who was guilty of a similar
offense or a similar lack of performance and somehow avoided being fired, you
could be in for an expensive lawsuit.
Its not necessary to treat employees like robots. Theres a lot of wiggle room in
the way managers can treat their people on a day-to-day basis.
But when it comes to discipline and termination, consistency is not just a goal,
its a requirement. Its your best insurance policy against a discrimination lawsuit
not to mention its value as a strong message to employees that performance
standards and behavior policies will be fully enforced.
No. 8) Is there any evidence of discrimination based on age, sex, race, religion,
national origin, disability or any other legally protected status?
This, of course, is the bedrock question in any adverse employment action. And
often, the answer depends on who you ask and how they interpret it.
Managers must step back and take a thorough, objective look at the
circumstances and personalities involved in the termination.
Policy violations and performance problems dont occur in a vacuum. Theyre
inextricably entwined with all sorts of workplace issues and when human behavior
is part of the equation, things can be difficult to sort out.
Since every single one of your employees falls into any number of protected
classes under antidiscrimination laws, its hardly surprising that most employees
who get fired at least entertain thoughts of suing for bias.

Every workplace has its own dynamic. The real question in termination situations is
this: If we fire this person, does he or she have grounds to charge that we made this
decision based on his or her race, religion, age, etc.?
If an open and honest examination of your actions toward the individual turns up
the possibility that he or she could make a viable bias claim, you need to make
your decisions carefully.
But if youre confident in both your actions and your documentation of the situation,
theres no need to change course.