91ÊÓƵ

One of the first questions I ask a company when one of its former employees files a lawsuit against it is: “What’s in the personnel file?” Although Oregon is an “at-will employment” state, employers are expected to have documented, legitimate, nondiscriminatory justifications for their actions. Consider the following practical tips for handling discipline and termination; they should help minimize the amount of legal exposure associated with such action.

Investigate and get the facts straight

Employers should always investigate allegations of misconduct before terminating an employee. This usually involves interviews with the accuser, accused, and any witnesses, along with a review of any relevant documents, emails, photos or other physical evidence. Avoid any imputation of bias by excluding from the fact-finding and decision-making process anyone who has bias toward the employee.

Enforce written and unwritten policies and practices consistently

One of the best defenses an employer can have in response to an allegation of wrongful termination is that other employees who committed the same infraction received the same punishment. It therefore is paramount that companies follow their own written and unwritten policies and impose discipline consistently regardless of who committed the infraction.

Minimize the element of surprise and consider progressive discipline

Although most employees will say they were surprised by their termination, employers can and should take steps to minimize such surprise. One way to do so is by applying progressive discipline, which typically involves imposing verbal counseling or written discipline for a first infraction with punishment that increases to suspension, last chances agreements, and then finally termination.

Also, consider the timing of the termination decision. If the termination decision is made shortly after the employee complains or participates in an investigation into allegations of discrimination, harassment, safety or company ethics, the potential for liability increases. Likewise, avoid terminating employees who have recently invoked the workers’ compensation system or recently indicated a need to take maternity or medical leave.

Say enough, but not too much

It is rarely easy to communicate the decision to discipline or terminate an employee. However, what you say in that moment is incredibly important. Be sure to communicate clearly to the employee the performance deficiencies that have triggered the action as well as what policies (if any) the conduct in question violated.

If meeting to discuss discipline, also be sure to cover the performance expectations going forward and areas requiring improvement. Never mention the employee’s protected class, or complaints the employee has made about the company or the employee’s supervisors, in a discipline or termination meeting. Finally, resist any urge to engage in an argument with the employee about the reasons for the employment action and avoid the temptation to apologize or make comments about “how good of a person” the employee is.

Document, document, document

Supervisors and human resources professionals should document performance deficiencies on a rolling basis as they occur, and also document each time that a discussion about those deficiencies takes place with the employee.

Documentation of discipline is most effective when it clearly identifies objective deficiencies in performance, attendance and effort. It should then build on itself, with a later written notice of discipline or notice of suspension referring back to the dates of prior discipline and counseling. Make sure that the supervisor or a member of the executive or human resources team proofreads all written discipline and confirms the dates and dates contained therein before it is finalized and provided to the employee.

Don’t break the law

At the risk of stating the obvious, a company puts itself at a serious disadvantage if it breaks any employment law in reaching the decision to terminate an employee or in the process of executing termination. Remember that, in general, it is against the law to discipline or terminate an employee if a substantial or motivating factor or doing so is the employee’s race, color, national origin, sex (including pregnancy), disability, religion, age, sexual orientation, military service, use of protected leave, injured worker status, or good faith complaint about a safety, health, legal compliance, discrimination, harassment, or retaliation issue.

Also, strict laws govern how quickly an employee must receive his or her final paycheck and tight restrictions determine what deductions an employer can take from the final paycheck. Although there is no state or federal law that requires payout of accrued but unused vacation, sick or PTO time, companies can create a legal obligation to pay out those banks of time through company policies and past practices.

Finally, most employers who offer medical, dental or vision benefits to their employees are required to offer terminated employees the opportunity to continue those benefits at their own expense for a set period of time.

Consider offering a severance agreement and release

Whether a company is worried there may be some risk associated with termination of a long-term employee, or simply wants to provide the employee with some severance pay, consider making an offer of additional pay and/or extended insurance coverage in exchange for a release of all claims. It is far cheaper to pay a couple of months of pay and benefits at the time of separation than to defend against a lawsuit through trial. Employers can negotiate such agreements to include confidentiality, non-disparagement, and noncompetition provisions. Importantly, technical requirements must be satisfied in order for the release to be effective.

Hopefully, these tips will help companies manage their employees’ performance and execute effective terminations. If there is ever a time for a company to consider spending money to talk to an employment law attorney, it is when it’s deciding whether enough information and support exists for a decision to discipline or terminate an employee.

Andrew Schpak, an attorney with Barran Liebman LLP, represents management in employment litigation and provides advice in employment matters. Contact him at 503-276-2156 or [email protected].