We have all lived in a highly regulated, pro-employee environment for years. Moreover, there is no hiding it; employers are bombarded by news about the hazards of having employees which illustrate the various pitfalls, often in painful detail. Yet, I continue to hear from employers desperate to terminate a problem employee, an employee who has been unacceptable “forever”, but whose personnel file reads like he or she is a solid performer or is otherwise bereft of any negative history.
At the risk of stating the obvious, in order for an employer to avoid a wrongful termination lawsuit filed by a former employee, there are certain rules that management should follow. Although California is an at-will employment state, it is easier to defend a legally challenged termination when an employer has a good reason for its actions than when the employer had no reason or is attempting to justify its actions in court for the first time. Indeed, if an employee feels as though he or she was terminated from a position without reason, that employee is more likely to assume an illegal motive by the employer. However, if a company manager is clear about the rules of the workplace, it will be less likely for the individual to file a wrongful termination case.
One of the first practices a new manager should implement is to regularly review performance. Employees rarely become poor performers overnight, and a history of reviews consistent with a performance-based decision will provide a firm foundation for the termination. It should go without saying that these performance reviews as well as all warnings should be documented.
Management should develop forms for performance reviews and for oral and written warnings and use them regularly. The form should be easy to use and should include a section that asks the manager to describe the problem and what the employee was asked to do to improve it, plus any warning about what would happen if the problem resurfaced. There should be space to document what the employee said in response and for the employee’s signature.
Yes, it’s a pain to go to all this trouble, but it is less of a pain than the alternative; just remember that while dealing with an employee that is having issues might not be fun, it is a lot less enjoyable dealing with them in court.
Guest contributor is Kelly O. Scott. Kelly O. Scott, Esq. is a partner in the Litigation Department and is head of the firm’s Employment Law Department.
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