How to avoid wrongful termination lawsuit

The decision has been made. You are

going to terminate an employee who consistently

fails to meet performance expectations.

Problem is, you have a lingering

fear that there might be some legal ramifications

that could ensue once the

employee is let go. You've heard about

employers who have had race, gender,

age, and other discrimination suits filed

against them. And stories about back

pay, punitive damages and public embarrassment

for a company.

Most business owners, when faced

with the potential legal ramifications

associated with an employee termination

would probably prefer to do nothing and

hope that the problem goes away. Their

mantra is "I don't have time for this distraction

because I've got a business to run.

Let's ride this one out in hopes that the

employee will decide to leave."

My 15 years of experience as a human

resource practitioner has led me to the following

conclusions with respect to wrongful

terminations: The No. 1 reason

employees sue is because they perceive at

some level that you have treated them

unfairly. With this in mind, below are

some important keys to reducing the likelihood

of a wrongful termination action:

1. Use specific performance and

behavioral standards to document performance:

I hear so many business owners

talk about the importance of documenting

performance deficiencies and creating a

paper trail on a poor performer.While the

importance of this cannot be denied, an

often overlooked component is the development

of clear, unambiguous standards

in which to hold the employee accountable.

Ask yourself, "Am I really evaluating

this employee based on specific standards

contained in their job description or are

my judgments based on an unconscious

emotional desire to see them gone?" The

message here is that employees will often

respond to your emotional judgments by

seeking justice often in the form of a

discrimination claim. You can avoid this

by focusing on their job-specific deficiencies

and nothing else.

2. Listen: My experience has been

that terminated employees that feel listened

to rarely sue. It's true that what

they are telling you may be a bunch of

bunk, but let's face it we all want to be

heard and acknowledged. When you find

yourself in a termination discussion with

an employee, keep in mind that the person

you are dealing with is not a bad person

but rather a person who happens to be the

wrong fit for your company.Take the time

to ask them questions that allow them to

come to their own conclusions about their

performance deficiencies. Show some

empathy with respect to what they are

saying. Genuinely let them know that you

care about them as well as the best interests

of the company.

3. Have a legal advisor and/or outplacement

counselor available: A legal

advisor, particularly one versed in employment

law, can serve as an invaluable

resource in preventing a wrongful termination

claim. Also, you can contract with

outplacement counselors to assist a terminated

employee in making a successful

transition to new work. Numerous studies

have shown that competent legal counsel

and outplacement assistance are important

investments you can make in reducing

your legal susceptibility.

4. Offer resignation as an option:

Gordon Bethune, president and chief

executive officer of Continental Airlines,

has often said that employees who are for

whatever reason no longer a match for

your organization will "self-select" if you

give them that option. What he was

essentially saying is that it often makes

sense to give poor performers the option

of resigning. This involves helping them

come to their own conclusion that they

need to move on. Rather than trying to

force them to resign (what is referred to as

a constructive discharge which has the

same legal effect as if you terminated

them), give them the option to walk away

with their dignity and humanity. Taking

this path can mitigate much of the anger

and emotion that the affected employee

might harbor if it were a termination, and

thus reduces that chance that they will

want to sue.

Keep in mind that the legal fears associated

with employee terminations are vastly

overblown. Think about it. Just about anyone

could file a suit about something if they

desire to based on perceived discrimination

based on their age, race, weight, disability,

marital status, and on and on. What is

important to remember is that if you are

committed to doing the right thing, the very

best you can, and treated the person as you

want to be treated, the terminated employee

is likely to overlook taking legal action

and view the transition as an opportunity for

a new beginning.

Michael P. Scott is the co-founder of End

Results, a career and human resources coaching

firm located in Carson City.

He can be reached at 775.232.2951 or


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