(509) 535-4646
The following recommendations provide a simple, common sense system for minimizing employment litigation:
In carrying out your hiring process, make certain that the following factors are considered:
- Make certain you are following a planned hiring process with an action timeline that includes steps such as recruitment, application review, interviews, etc. Make sure that the company’s hiring process includes reviewing the job requirements and considering the company’s needs.
- Make sure that applicants complete and sign an official company Employment Application that has been tailored to your specific company. Applications ensure that applicants detail information regarding the specific skills, traits, personality and experience your company is looking for and can also require applicants to verify and agree to the terms of the application and other important policies such as employment-at-will (when appropriate).
- Make sure that you are using lawful hiring qualifications such as satisfactory employment reference checks, reasonable levels of experience, etc. Also, consider obtaining a release from the applicant that enables the company to inquire into past job performance and to verify references.
- When rejected applicants ask for a reason, if in doubt, consider telling them that you are simply hiring the person the company believed best fit the qualifications of the job. This approach avoids offending the rejected applicant and also avoids telling the individual something insufficient or improper. If the applicant pushes for a further answer, he/she may simply be told that the company respects privacy rights and does not go into specific reasons why one applicant was favored over another.
Make certain you do not promise (either verbally or in writing) more than you are prepared to deliver in terms of employment length, wages, benefits, bonuses, etc. More and more courts are finding that verbal or written promises constitute “implied contracts” with employees. Therefore, avoid terms like “guaranteed,” “permanent,” or “lifetime” employment. Instead, speak in terms of “regular” employment if work attitude, experience, safety habits and ability to do the job are acceptable.
Always be aware of the protected classes under Title VII and the Civil Rights Act: race, color, sex, religion, national origin, disability, veteran, and age. Be careful not to use any biased or discriminatory phrases in your verbal or written statements to employees. Obviously, biased or discriminatory statements should not appear on any company documents including employee handbooks, job applications, etc.
Maintain an updated employee handbook. Make sure that your employees understand your company’s employment policies and procedures and are alerted to any changes made to them. Also, make sure that all policies and procedures are reasonable.
Standardize your discipline procedures and strictly adhere to them. This minimizes lawsuits and establishes company impartiality. Use progressive discipline, with several warnings prior to discharge, that allows the employee to correct unacceptable behaviors. Issue a final warning before discharge takes place. In the case of a major violation, an employee should know that he/she may be discharged on the first offense.
Document ALL warnings given to employees moving through the company’s established discipline procedures. Proving prior counseling or warnings is difficult unless they are properly documented.
In the event of a fight or argument between supervisors and/or workers, stop the confrontation immediately and postpone employment decisions until an investigation can be completed. Get the workers to clear the area, or go home, and obtain the names of all the individuals involved as well as any witnesses. Before taking action, talk to all of the witnesses and obtain statements from all those that will not be available at a later date.
Complete a fair investigation before disciplining. Make sure that you find out whether the employee did, in fact, violate a rule or order. Before disciplining or terminating an employee, review his/her record in its entirety, including past violations - all of which should enter into the evaluation.
Use the appropriate penalty for the offense; make sure that the degree of discipline is reasonably related to the seriousness of the offense, the employee’s past record, and the type of discipline you normally hand-out for that type of offense. Make certain that all terminations have properly documented reasons.
In terminating or laying off large numbers of employees, consider such factors as age, sex, race and other protected classes. If 18 out of 20 workers who are let go just happen to be Hispanic, women, or over 40, you may be setting yourself up for a risky class action suit.
Treat your employees with courtesy and respect. In the event of termination, give as much warning as possible, and treat the terminated employee with courtesy. An employee who has been insulted as well as terminated is more likely to retaliate by suing the terminating supervisor or the company.
Let employees know that you want to hear their complaints and resolve any problems. It is far better that an employee take a complaint to someone in the company rather than someone outside the company like an attorney, the EEOC or Human Rights Commission. Let employees know that they may appeal your actions to your immediate supervisor, and so on up the chain of command. (Always follow company policy.)
When in doubt about the legal ramifications of an action – demotion, firing, new personnel policy, etc. – contact your supervisor, human resources manager, TPM or labor law attorney. The greatest legal expenditure a company can incur is litigation. The most productive expenditure is getting advice in advance. Consultation not only minimizes risk, it also shows that you have acted responsibly.
Don’t try to block a terminated employee’s future employment. Employees who have a new job are less likely to bring a lawsuit against their former employer. Bad references, particularly those that cannot be proven, can lead to such charges as libel and intentional infliction of emotional distress, while good references may constitute an admission that there were no biases involved in the discharge. However, it is very important that you be accurate in stating the reasons for any termination on any unemployment compensation form. If you are in doubt as to the reason, or if the case is controversial, contact your supervisor, human resources manager, TPM or labor law attorney.
In addition, you may want to consider the following factors in deciding whether to fire:
- Before discharging an employee, ask yourself if the same action would be taken if the person was of another race, sex, age, etc., and whether you have actually terminated those of the other race, sex or age for the same reason(s).
- Did the employee have prior warning or was the offense so major as to call for termination on the first offense?
- Does the documentation support the reasons for the termination?
- Did you get the employee’s side of the story before the termination?
- Have you applied company rules/policies/procedures even-handedly and without discrimination to all employees?
- Was the employee told in advance that certain behavior may result in termination?
- Ask yourself, “If I fire this employee tomorrow, will it be a surprise to him/her?” If the answer is yes, then the process of progressive discipline has not been properly applied. Another warning, perhaps a final warning, should be given prior to the termination (except in the case of a major offense warranting immediate termination).
Be careful what you tell the employee and put on employment forms as the reason for discharge – this will be the first information requested by the government agency or the person’s attorney. Be accurate and clear as to what you place on the employee’s termination sheet. If in doubt, check with your supervisor or human resources department.
For any terminated employee, create a written memorandum for documentation that details the decision to terminate including all related facts and the procedures that lead up to the decision to terminate employment.
Consider giving the employee an opportunity to resign. Employees that resign are less likely to bring litigation.
Always be as fair and consistent as you can in your hiring and firing decisions. Eliminate any and all biases.
Timber Products Manufacturers Association
951 East Third Avenue, Spokane, WA 99202
phone (509) 535-4646 fax (509) 534-6106