Laying the Proper Foundation to Fire a Trouble Employee
Firing an employee is always difficult, especially when it involves a long term employee. The last thing you need, after making that hard decision, is to be sued by the fired employee. In construction, a building built on no foundation or an improperly laid foundation is subject to collapse. The same is true for employment decisionsAca,!aEUR?if you do not invest time and effort to prepare for employment decisions, those employment decisions may "collapse" and expose you and your company to significant liability.
LetAca,!a,,cs start by looking at an example: Ben Conner owns a small home construction company, Conner Construction, which he began almost thirty years ago. Johnny Jones, a fifty one year old black man, has been with Conner Construction from the very beginning. Johnny has been a loyal and dedicated worker and is the supervisor of one of Conner ConstructionAca,!a,,cs crews. Over the last several years, however, Johnny has been having problems: he has been staying out too late with the boys too often, he has been in out of alcohol rehabilitation without much success, he has been calling in sick or showing up late frequently, several weeks ago he fell on the jobsite and injured his back resulting in several visits to the workerAca,!a,,cs compensation doctor, and now Ben Conner is receiving complaints from clients about the work Johnny supervises either being late or substandard. Ben is a nice guy, hates paperwork, and avoids confrontation. As a result, Ben has never said anything to Johnny about his work problems, much less documented any of them. Other than JohnnyAca,!a,,cs work performance, business has been great for Conner Construction. Conner Construction just started a third full-time crew and hired away from a competitor a young man with a great reputation, who happens to be white, to supervise the new crew. Ben had to pay him more than Johnny to lure him away from the competitor. Johnny found out and told Ben that he could make that much too "if he was a little younger and his skin was a little lighter." Several weeks later, when Ben arrives at JohnnyAca,!a,,cs jobsite first thing in the morning, the crew is sitting around waiting on Johnny who is yet to arrive. Ben realizes that the job is now two weeks behind and finally decides that he must fire Johnny. What should Ben do?
Have you ever been in a position like Ben Conner? If Ben fires Johnny, he could be facing a lawsuit from Johnny with the following potential claims, among others:
A?aEURs. Race Discrimination under 42 U.S.C. A,? 1981 and Title VII of the Civil Rights Act of 1964, as amended (Johnny is black and a similarly situated white employee is paid more for the same work);
A?aEURs. Age discrimination under the Age Discrimination in Employment Act (Johnny is over forty years old and his comparator who earns more than he does is under forty);
A?aEURs. Disability Discrimination under the Americans with Disability Act (Johnny is potentially a recovering alcoholic);
A?aEURs. WorkerAca,!a,,cs Compensation Retaliatory Discharge (in some states an employer cannot fire employee in retaliation for filing a workerAca,!a,,cs compensation claim); and
A?aEURs. Retaliation under 42 U.S.C A,? 1981, Title VII, and the Age Discrimination in Employment Act (Johnny was fired after he complained about a younger, white co-worker earning more than him).
Facing all these potential claims, should Ben reconsider his decision to terminate JohnnyAca,!a,,cs employment and just learn to live with JohnnyAca,!a,,cs substandard performance? The answer isAca,!aEUR?it depends. It depends on what Ben did to lay the supporting foundation for his decision to fire Johnny.
HANDBOOKS AND ANTI-HARASSMENT POLICIES
The "cornerstone" of this foundation is an employee handbook or written policies concerning company procedures and standards of conduct. If an employer has written policies that are consistently and indiscriminately enforced, there can be no dispute as to what those policies are or what the company expects of its employees. These policies will often include "stepped" disciplinary procedures that will identify the discipline that will be taken for different types of misconduct. If the company has, or elects to establish, a "stepped" disciplinary procedure, ensure that it provides an "out" so that the company can forgo a "step" and move directly to termination, if necessary. Beware of phrases such as an employee will be terminated "only for just cause" as the company may set itself up for litigation over what is "just cause." Also, make sure that the employee handbook does not create a contract of employment or alter the at-will status of the employee. A simple disclaimer at the front of the employee handbook that is acknowledged by the employee will ensure that the company handbook does not create a contract of employment.