- Practice Areas
- Firm History
- Firm News
- Prosecutorial Misconduct: Improper Closing Argument
- Making the Informant Show Up or Shut Up: Confrontation Issues in Federal Court
- An Ounce of Prevention - Legally Speaking; Will your employment policies hold up in court?
- An Overview of Expungement in Tennessee
- A Primer on Tennessee Workers’ Compensation Law following the 2004 Major Amendment
- Eminent Domain Basics
- Home Study Information for Adopting Parents
Whether it is a certain employee whose job performance is less than desirable, or whether it is just the need to run a leaner and meaner office, from time to time every employer faces the task of terminating an employee. If you haven’t found yourself in that predicament yet, just hang on, your time is probably coming. To be truthful, all of the emotion and trauma of the actual termination process is probably not the worse part for the employer. Although we would all be hesitant to admit it, the fear of the legal ramifications of discharging a worker can haunt us even more. The question then becomes, how can you terminate an employee in a dignified, professional, AND legal way?
When faced with an employee who has violated office policy, has inadequate job skills, or is just basically not getting the job done, the old adage “document, document, document” could not be more appropriate. If you are armed with a job description and the original employment application for that employee, give yourself a pat on the back. However, the most important documentations you need are the written records of your prompt investigations of complaints, previous performance reviews, and records of previous disciplinary actions. It becomes more difficult for an employee to prove a legal claim against you if you have detailed records of that employee’s continued shortcomings. Conversely, if you are contemplating the termination of an employee and you have no back-up documentation, you might want to consider a disciplinary or probationary period in which you have a chance to memorialize the inadequate performance or inappropriate conduct. It is also possible that the employee will raise the bar and begin to meet your expectations. Basically, it really all just boils down to something all medical practitioners understand – preventative medicine.
Maybe it is best phrased this way – legally speaking, how healthy are your employment policies? Do you have an employee handbook, and if you do, does it emphasize that it is not a contract of employment? Does your handbook contain necessary EEOC policies regarding nondiscrimination, sexual harassment, and accommodations for disabilities? Is there a procedure for employee complaints of discrimination and harassment in your handbook? If you participate in the Drug-Free Workplace program, is that policy sufficiently outlined for your employees? The questions could go on and on, but you are probably getting the picture. Having a healthy employment policy involves much more than timely paychecks and good benefits. Just as is true with physical health, an ounce of prevention is worth a pound of cure. Economically speaking, the time and effort spent establishing effective employment policies could be much less expensive and troublesome than having to terminate an employee without them.
When terminated employees show up at attorneys’ offices they typically assert claims such as age-related discrimination, gender discrimination, sexual harassment, breach of contract, or retaliation for opposing an illegal employment practice. As the attorney begins the interview with that disgruntled individual, one of his first questions will be about the employee handbook. Were there effective employment policies and were those policies followed? Also high on the attorney’s list of questions is whether the employer has written documentation of previous investigations, reviews, and disciplinary actions. Was there a termination letter and what reason did it provide for the employee for the termination? You get the picture. Former employees facing the woes of unemployment in uncertain times will begin to look for remedies for their bleak situations. And, unfortunately, but possibly appropriately, your employment policies suddenly become the focus of a legal battle you never even contemplated. At this point, it is important to insert this one essential fact about employment law. Many states, including Tennessee, have an “at-will” employment law. This means that an employee may be dismissed without any reason, as long as certain state and federal laws protecting that employment are not violated in the process. The key is becoming aware of all of those state and federal laws that you may not violate.
Again, at the risk of sounding redundant, the best medicine for any legal troubles with former employees is prevention. Establish sound policies, adopt an employee handbook, and, by all means, follow the policies and handbook provisions to the letter. Interestingly, when employees are well aware of employment guidelines and problems are promptly and effectively investigated and handled, job performance tends to be better. It is also true that sexual harassment is more likely to occur in workplaces without well-defined policies or where employees are not aware of those policies.
But what if you just need to downsize? What if there are no documented reasons for dismissing an employee? Remember, most states have “at-will” employment laws. You may terminate an employee for any reason, even because it is no longer economically feasible to employ them. However, some tips may be appropriate if you are anticipating this process. Bonuses for certain other employees, an upcoming remodeling project for your office, or the plan to expand your practice in the near future might be just enough impetus to send the dismissed employee to an attorney seeking a legal remedy. At that point, your employment policies and the procedure you used to terminate the employee become the focus once again.
Does all of this sound overwhelming? It shouldn’t. It is really no more complicated than a patient going to the doctor for a check-up. Find a law firm that handles employment law for employers and have them evaluate your employment policies and handbook. It may be the best preventative medicine you will ever take.