When it comes to defending a workplace lawsuit, strong written policies with signed acknowledgements from your employees will go a long way. Another important element of being prepared is documenting employee problems and corrective actions. Even though it seems like common sense to fire an employee who repeatedly performs badly, you shouldn’t get too comfortable with “at will” employment. The doctrine (in most states) dictates an employer or employee can terminate employment at any time, with or without notice and with or without cause. If you follow this practice, you don’t even need a reason to let someone go, let alone documentation, but it won’t sit well with a judge and jury.
To prevail in a wrongful termination claim, the employee must prove the following things:
- He or she was terminated.
- He or she is a member of a protected class (everyone is a member of several) or has participated in protected activity (taking part in a harassment investigation, for example).
- The employer treats individuals outside the plaintiff’s protected class who work in similar positions more favorably or the circumstances surrounding the adverse employment action suggest the termination was discriminatory.
Here’s a real-life scenario:
Maria, a Hispanic female, is fired for talking on her cell phone during work. Maria files a charge with the EEOC alleging her employer let her go because of her ethnicity and gender. In her charge, she alleges her employer treats non-Hispanics and men more favorably. The charge goes on to say white, male employees use their cell phones during work but are not disciplined or terminated.
With good documentation, you’ll have a better chance of showing a legitimate, non-discriminatory reason for the termination. If you kept track of the times Maria had been written up for talking on her phone during work hours and also disciplined other employees (including non-Hispanics and men) the same way, it can help your defense. Even if your state does not require you to have a reason to fire someone, it’s always better if you have a documented reason.
In HR we say, “If it isn’t written down, it didn’t happen.” This definitely applies to defending wrongful employment actions. Without documentation, it’s an employer’s word against an employee’s word and the verdicts tend to favor the employees when employers don’t have the most basic HR practices in place to show they treat their employees fairly.
Not only is it important to have sound HR policies and practices, it’s vital to administer them consistently. Many times, plaintiffs can prevail on the premise of perceived fairness rather than the law. It’s important to show, for example, you provided policies to your employees and explained all applicable procedures. Then, if an employee doesn’t follow them, you gave a written warning and a chance to improve. If the bad behavior continues, you terminate the employee. It seems logical, but in the eyes of a jury, it’s only fair if your rules and procedures are followed consistently and equally applied to all employees.
If you find yourself in a position to take adverse action against an employee (whether it be a demotion, cut in pay, termination, etc.), you run the risk of unlawful practice allegations. That’s why it’s so important to protect yourself. Develop sound policies, understand their purpose and follow them consistently.