This post is part of Experience Matters, a series drawing on my 30+ years of defending employers in California employment litigation. The series highlights actions you can take to reduce risk – and worry less – as you manage your workforce.
Employers too often feel held hostage by their workforce in my experience, fearful of the risk in California of terminating employees. Taking the right steps to prepare for potential terminations, though, can effectively cut risk and boost your confidence in making termination decisions. This post shares practices that will support you in the lead-up to making termination decisions and bolster your counsel’s ability to defend your decisions later.
When considering potential terminations, keep these action items in mind:
Avoid Surprises
In emergencies – say, an employee sharing valuable employer-owned data or engaging in workplace violence – immediate terminations may be necessary. In most circumstances, though, you can take the time to “invest” in a potential termination. Taking steps to make sure employees should not feel surprised by being let go is one key.
Employment in California is supposed to be at will, right? You can terminate without advance warning and for any reason or no reason, yes? Not so in many jurors’ minds. Those who take a seat in jury boxes most often expect employees to be treated fairly, regardless of what the law says. Jurors, for example, generally expect employers to give advance notice that employees are at risk of being let go and an opportunity and time to turn things around for themselves.
Where employers fire without warning and employees are taken by surprise, juries tend to view the employers’ actions as unfair. From that threshold, jurors are then more receptive to arguments from the ex-employee’s counsel that the employer did not give advance notice because the organization fired the employee for a nefarious, unlawful reason and did not care whether the employee improved. Broadly speaking, plaintiffs’ counsel are less likely to sue and terminations are more defensible when employees are given fair advance notice that they are at risk of termination, told what they need to do to keep their jobs, and then fail to meet standards.
In addition, employees who are surprised by being let go generally feel ambushed and treated unjustly, reactions that can spur them to seek out employee-side counsel. Your former employees meeting with plaintiffs’ counsel is, obviously, something we would like to avoid.
These risks are compelling reasons to ensure that, whenever possible, you give employees advance notice that their performance or conduct is deficient, tell them the standards they must meet and give them time to do so, and advise them that they are at risk of termination if they fail to rise to standards. Your notice should be forthright and clear.
Give the notice in writing and copy it to the personnel file. Having the conversation verbally, or through the company’s internal messaging system that may not preserve messages for more than 90 days, for example, will be of little to no help when the demand letter or lawsuit arrive many months later. At the very least, screenshot what you send the employee and preserve that for the file or send HR a note summarizing your conversation with the employee.
In any event, if the termination is going to come as a surprise to the employee, you likely have not laid the groundwork needed to separate the employee with a minimum of risk.
Hear Them Out
Before you make the decision to terminate, give employees opportunities to respond to your concerns with their performance or conduct, to tell their side of things, and genuinely consider what they tell you.
Allowing employees an opportunity to address your concerns is valuable almost regardless of how employees respond. When an employee has something relevant and substantial to say about the criticisms of their performance or conduct, it is far better to learn this before you pull the trigger on termination than after the firing and many months into costly and distracting litigation. On the other hand, when you give the employee opportunities to address concerns and they have nothing relevant to say in response, that fact – that they had no good explanation or excuse – will be valuable in successfully defending the termination later. Hear employees out and take good notes!
Also, employees who are let go without having been given opportunities to respond to the grounds for potential termination tend to feel railroaded. This is another experience that can drive former employees into the arms of employee-side attorneys, where they too often transform into plaintiffs.
Aim for Similar Treatment
Before deciding to terminate, find out how your organization treated other employees who failed to meet the same or similar standards in earlier instances. Were those employees let go or treated less severely, e.g., suspended, given training, etc.? If earlier employees were not fired, are there aspects of the situation at hand that are more egregious than the earlier situations? If so, are those differences weighty enough to justify termination this time? Can the differences be demonstrated objectively or are they subjective and more open to being questioned? Ultimately, does firing now because of differences between the employee at hand and earlier circumstances pass the smell test?
If the situation at hand is not credibly different from earlier circumstances when employees were given less severe discipline and you nevertheless proceed with termination, do not be surprised if the separation comes back to bite you. When a termination is out of step with the organization’s history, you should expect plaintiff’s counsel to jump on the disparity. Specifically, plaintiff’s counsel will use your more severe treatment – termination – to argue that the difference that actually motivated your decision to fire this time was, for example, the plaintiff’s race or gender, or that she took pregnancy leave or made legally protected complaints, that is, as evidence of an unlawful reason for termination.
When you act out of sync with the organization’s actions in earlier similar circumstances, it can be an uphill climb to convincingly explain to a jury your decision to terminate this time. Avoid the problem; make a genuine effort to act consistently.
Looking into how earlier cases were treated requires extra effort and time on your part. However, the benefits are great. Consider the consequences of terminating without knowing that earlier employees in similar circumstances were not let go! On the other hand, when you do the research before you make the decision to fire, merely the fact that you took time to treat the current employee consistently with how the organization handled others can be convincing evidence that you acted fairly in reaching the decision to terminate.
Don’t Go It Alone
Too often in lawsuits alleging that terminations were unlawful, one manager or another person in the business made the judgment call to fire the plaintiff essentially alone. Very often, had those decisions been run by a second person, an appropriate colleague with a good sense of judgment and who was informed of the circumstances, before the trigger was pulled, poor decisions and costly, time-consuming lawsuits would have been avoided.
“Two heads are better than one” is an adage well worth following when you consider whether to terminate an employee. You will be better off if you involve an appropriate, impartial, trusted colleague in making the decision with you as opposed to you going it alone.
Consider Alternatives to Firing
Do not view potential terminations as binary decisions, namely, to fire or not to fire. Most often, your decision should be one among several options. There are almost always at least one or two reasonable alternatives to termination to consider. Depending on the circumstances, alternatives may include, for example, placing the employee on a performance improvement plan, suspending or demoting the employee, or providing further training, possibly along with discipline. Or maybe even giving the employee one last chance to fix the issue or be let go if they fail.
You will benefit if you regularly identify and sincerely consider alternatives to termination. On occasion, you will land on a course of action other than termination and potentially salvage an employment relationship, avoid turnover, and reduce risk. When you decide on termination, the fact that you fully explored alternatives to separation will demonstrate your intention to be fair and will be useful later in defending your termination decision, if need be.
Conclusion
I look forward to sharing the next installment of Experience Matters – a series sharing valuable steps you can take to reduce risk in managing your California employees.
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