Steps To Avoid Wrongful Discharge Claims
Employers constantly ask what they can do to avoid claims from disgruntled former employees alleging wrongful discharge. Although there’s no surefire way to completely avoid such claims, there are steps that can be taken to minimize risk:
- Use job applications that say that any lie, misrepresentation or omission on the application, no matter how small, will lead to a disciplinary action, up to an including termination.
- Be consistent in discipline of employees: you don’t want to give rise to allegations that similar employees are being treated differently.
- Be careful with employment-regulated documents: if you’re not prepared to have something in those documents enforced, then don’t put it in. Remember, just about anything can be used as the basis for a contract claim. Just the same, be careful about oral promises made to employees, since such promises can lead to contract claims or detrimental reliance claims.
- Supervise your supervisors: remember that your supervisors are your agents. Promises they make can easily be attributed to you.
- Use employment contracts: these are fine as long as they’re carefully written and highly restricted in terms of what they promise.
- Have an employment manual: again, these also must be carefully written and not promise things you don’t intend to promise.
- Be careful with your evaluations: if you have an employee evaluation system – and you should, both for legal reasons and for general performance reasons – then be accurate. If you are unhappy with an employee’s performance, then you should let her or him know that in the evaluation. Don’t tell an employee how great he or she is in the evaluation and then fire that employee two months later for poor job performance.
- Keep very detailed and complete records – some employers are shocked at the amount of evidence that employees can keep. Employers should not be any less thorough.
- Follow-up on employee complaints of working conditions: if more than one employee is complaining about the same thing, investigate. Employees who are taken seriously and treated fairly are less likely to sue, even if they’re fired.
- Deal with conflicts between employees: this is a frequent problem. If two employees are having problems with each other, at some point they will blame the employer for doing nothing to solve the problem.
- On that same note, don’t tolerate problem employees. If an employee is a problem in the first month, you can bet they’re going to be an even bigger problem six months later. When you notice problems, cut ties right away – before you’ve wasted a ton of time, money and effort on an employee whom you’re going to have to fire anyway.
- Warn of consequences: have a hierarchy of consequences for what’s going to happen based on certain violations.
- Don’t fire with anger: don’t yell at an employee and tell him or her to “get the hell out!” That just makes employees more likely to seek a lawyer. Be calm, be respectful, be general and, most importantly, be brief. Get in and get out, while avoiding power struggles between employees who are demanding an explanation for why they’re being fired.
- Check job references: prevent problems from happening in the first place. Many employees may have problems with one employer, and often that is an employer’s fault, too. If a potentially employee has had problems with two or more, you really have to consider whether this is a person who should be hired in the first place.
- If they’re willing, have employees sign a release indicating that they forfeit all rights to a civil action against you. You can’t force an employee to sign this and you can’t withhold their final pay if they refuse, but there are things you can do to sign such a release. If you feel an employee may be problem, a small amount spent to entice an employee to sign such a release will be a pittance compared to what you would spend in legal fees if they start creating problems for you. You may not even have to spend a dime. Perhaps you could tell an employee that you’d be willing to right him or her a letter of recommendation if they’re willing to sign a full release – and that release better be very well-written.