As an added bonus, when the former employee is forced to slander herself to a future employer by stating that she had been terminated from her previous position, a self-defamation claim may be asserted.
When each step of the termination process is carefully considered and implemented, an employer gains at least two advantages.
First, by taking the time to articulate and analyze the exact reason for the adverse employment action, the employer is forced to carefully weigh termination vs. continuation options.
Second, in the event of litigation, proper documentation supporting the rationale for the decision and evidencing a routine termination process can greatly reduce the likelihood of an unfavorable result.
The decision to terminate, the actual termination and the aftermath must be handled with great caution and sensitivity to statutory and common law.
In the process of determining whether to terminate an employee, the employer is creating evidence. Every document drafted and every conversation conducted will be subject to intense scrutiny if litigation commences. Every manager involved could be the next deponent, every document an exhibit.
If, for example, a employee is discharged for poor performance, specific examples of such performance and not just conclusive statements need to be plainly stated in review documents.
Of course, from a litigation perspective, in the best-case scenario, the employee’s personnel file includes negative reviews, unexcused absences and perhaps a performance improvement plan that the employee agreed to, but failed to satisfactorily complete. Without this documentation, a manager may be suspect of discriminatory behavior.
Employers may also be remiss in not examining the history of the firing manager as part of the process is the decision maker prone to adversely impacting employees of a particular protected class? In the end, the employer should either be satisfied that the termination can be justified to a jury or rethink the decision to terminate.
In order to avoid potential litigation claims arising out of the termination, including defamation, emotional distress, invasion of privacy and other claims, employers should consider the following steps:
Former employees even those who elect not to immediately pursue legal remedies may still haunt their former employers. The after life of an employee the communications an employer issues or does not issue can create still further liability for the employer. Generally, employers enjoy qualified privilege when they communicate information about an employee to a prospective employer. This advances the dual public policy purpose of allowing employers to give opinions and information to people legitimately making inquiries regarding former employees, while protecting the job seeker from malicious undercutting by a former employer.
Legislation granting immunity to employers that give truthful job references to prospective employers has been enacted in several states. Ordinarily, the statutes prescribe what information an employer may provide and still retain statutory immunity.
With respect to requests for referrals, employers are advised that, as a general rule, letters of reference should not be offered, first a negative assessment though arguably privileged, may result in a defamation claim, second, a glowing recommendation upon which a respective employer relies may result in a suit by the subsequent employer if that employer incurs damage as a result of hiring the employee.
If negotiated as part of a separation package, such letters should be limited in scope and include only title, dates of service and a description of duties. More detailed recommendations must indicate particular strengths or accomplishments. If a company decides to adopt a limited disclosure policy, it should be communicated to all managers to insure consistency.
Finally, employers must also be aware of potential liability under tort theories for providing a false or misleading reference.
From the initial decision to terminate through dealings with future employers, every aspect of an employee’s termination must be handled with care. Serious consideration to each step in the process should result in an increased likelihood that an employer will prevail in litigation.
This publication is intended to serve you. If you would like certain topics covered, or have any questions or comments, you are invited to contact Mr. Dunham at: 941.951.1800, Ext. 250, Facsimile: 941.366.1603, E-Mail: firstname.lastname@example.org, Web site: www.jrdlaw.com or write him at LUTZ, BOBO, TELFAIR, DUNHAM & GABEL, Two North Tamiami Trail, SARASOTA, FLORIDA 34236.
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.