Problem employee? Tips to protect your company against discrimination claims. (Part 2)

Christopher T. James, Matthew S. Veech

May 10, 2017

Part 2: Tips for employers to protect against claims of discrimination.

In Part 1, we discussed the importance of documenting and conducting regular performance reviews of your employees. Here we will discuss some common mistakes by employers in disciplining and counseling employees that can potentially lead to claims of discrimination at the time of termination.

As reported in Part 1, one of the reasons it is important for employers to conduct regular performance reviews is to allow employers to document issues that they may need to rely on in making a termination decision. However, employers should not wait for the review to discipline employees. Workplace misconduct or performance issues must be addressed real time and with a similar approach as an employee review. Before disciplining the employee, the employer should ask themselves these questions:

  • Have our expectations, as the employer, been clearly communicated to the employee?
  • Have we been consistent with the employee as well as others?
  • Have we documented each counseling session with the employee?
  • Are we prepared to justify and defend legal challenges?

While some minor performance issues can wait to be addressed until a regular performance review, others are more significant and must be addressed in real time. These can often be subjective in nature, so again, documenting these events is of the utmost importance. Absent documentation, if an employer later seeks to take an adverse employment action against the employee (whether discipline or termination), the employer risks a discrimination claim by a member of a protected class.

Specifically with respect to disciplinary actions, we recommend that the following documentation occurs:

  • What really happened? – In the event an employer conducts an investigation into conduct by an employee, the employer must focus on the events in question and document the statements of witnesses and include that documentation in the employee’s disciplinary file.
  • What rule was violated? – The documentation by the employer should state specifically what rule or policy the employee violated. Was it a violation of an OSHA regulation? A policy from the Employee Handbook?
  • Receipt of counseling – The employer must meet with the employee regarding the discipline and corrective actions to be taken and have the employee acknowledge, in writing, the receipt of the counseling documentation.
  • Confidentiality of investigations and disciplinary actions – The employer must always maintain the confidentiality of all aspects of the disciplinary process.

Unfortunately, sometimes discipline, counseling and performance improvement plans do not work and you have to terminate an employee. When terminating an employee, the meeting should be professional and direct. It is a good practice to have a script and you should have a witness in the meeting. It is important that the witness be the right person, generally a human resources representative and/or a supervisor or manager. The termination meeting should generally be brief; this is not the time to revisit the issues that led to the termination. Those discussions should have happened earlier, either at a performance review or when the employee was counseled and made aware of the performance issues and workplace/performance expectations.

While employers are not required in Texas to provide a written termination notice, it is often advisable as it provides an easy script. If you choose to use a written termination notice, we recommend reaching out to legal counsel to assist you in drafting the notice. With respect to the meeting with the employee, if you do provide a written termination notice, stick to what you have written.

Letting go of an employee is never easy, and there is no right place or right time to terminate someone. Exercise your judgment as to whether it should be in an office, a conference room, or even outside the office. There are different thoughts on whether the message should be delivered in the morning or at the end of the day, and whether it should be at the beginning of the week or at the end. When it comes down to it, this is a decision to be made by each individual employer based on what is best for that employer. However, an employer must be prepared for the employee to ask if he or she may tell their coworkers goodbye, and to have a response to that request.

Finally, avoid apologies. Apologies suggest some misgivings or concern that you have done something wrong. If handled right, through the review process and disciplinary meetings, the employee will not be surprised. And while an employee in a protected class may contact a lawyer or bring a claim for discrimination, if you have been thoughtful and diligent regarding documenting the reasons for termination, you will be more comfortable in making difficult employment and termination decisions.