Hiring and the Law — Terminations and the Law

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: How do you terminate an employee?

Answer: With great care and consideration.

This is not an action to take when you finally get so frustrated with an employee’s performance failures that you just have to let him or her go. A loud Donald Trump-like “your fired!” may feel satisfactory at the time—but can also set the company up for legal claims by the employee who was let go.

Preparing to let an employee go actually starts when an employee is hired. Most employee lawsuits arise when the employee didn’t see the termination coming—no one set the expectations or let the employee know when he or she was not meeting them. Therefore, the steps to take to attempt to avoid employee lawsuits stemming from terminations include the following:

• Job descriptions that let employees know what is expected from their particular job.
• An Employee Handbook that lets employees know what is expected of them as your employee in general.
• Managers who give performance feedback as part of their day-to-day interactions with employees. A “good job on that report today!” or a “Tony—you really need to get here on time; we’re counting on you” can go a long way with employees. Don’t wait until an annual review to let an employee know how he or she is doing. Employees should always know where they stand with a company.
• Annual performance reviews—which are accurate and honest and don’t identify everyone as satisfactory even when they are not. How can an employer support a defense to a wrongful termination lawsuit that an employee was just awful when the performance review says “satisfactory”?
• Performance Management in the form of coaching/counseling, verbal warnings (which are then documented with written memos to file), written warnings, performance probations, suspensions (with and without pay), and other actions taken to be sure that employees are well aware that their performance, behavior, attitude, etc. on the job are far from acceptable and are not satisfactory.
• Terminations only after the employee has been told what is expected, corrected when the standards were not achieved, given several chances to make the grade, and has failed to perform as expected.

With all of these in place, employees will be less likely to presume that the termination was because they were black, brown, pink or purple. They will know very well that their employment was terminated because they failed to deliver as required by their employer. In addition—with all of these factors in place, an employer just may be pleasantly surprised when an employee actually improves and the termination is avoided.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.