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Friday
Jun162000

Be Honest When Terminating Employees That Do Not Work Out

It is human nature. When delivering bad news, whether during an evaluation, when disciplining an employee that is having problems or when terminating an employee that does not work out, we want to cushion the blow.

If an employee must be terminated, we don’t want to make them feel bad, we just want to deliver the news with as little confrontation as is possible. This way, both the business and the employee can move forward.

It is not uncommon during terminations to give employees a reason that is not the true reason for the termination. It allows the employee to save face and avoid confrontation. It can, however, also subject you to liability for discrimination.

That’s right, discrimination! The United States Supreme Court ruled just over a year ago that if an employer lies about the reason for firing, the jury can simply infer that the real reason was discrimination. The terminated employee does not have to show any direct evidence of discriminatory intent.

The case, Reeves v. Sanderson Plumbing Products, Inc., No. 99-536, is available online at

http://supreme.lp.findlaw.com/supreme_court/briefs/99-536/99-536.mer.ami.chamber.pdf

Don’t let this happen to you.

Don't: Don’t give “reasons” for employee evaluations, discipline or termination that are not the true reasons for your action.

Don't: Don’t give a reason for an employment action that is a pretext for the true reason for the action.

Do: Do decide if you want to give reasons for the employment action. If you are an “at-will” employer, you are not required to give a reason. You can simply say “it is not working out.”

Do: Do make sure you are an “at-will” employer and that there are no statements in your employment application, employee handbook, other employment documents or verbal comments that negate your “at-will” policy before demoting or terminating an employee.

Do: Do make sure that the employee is not a member of a protected class (race, religion, national origin, disability, etc...). If so, greater care is needed to make sure the employment action does not violate public policy.

Do: Do give the full reasons for the employment action, if you decide to give a reason.

Do: Do consider documenting the reasons you gave to the employee in a confirming letter to the employee. This could help counter any accusations by the employee later that you said something you did not say.

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