Last blog post in my series of managing the discharge of an employee from your business. In today’s article I will offer some tips as to how to process a discharge in certain circumstances, and why to choose one procedure over another to preserve employment claims defenses. The reason to do this is that if or when the employee files an unemployment claim, a grievance, or a discrimination claim, the business will want to make sure it has its defenses lined up when the claim is filed, and importantly, the defenses may vary depending on the type of claim made by the former employee.
Often a discharge occurs in the heat of the moment and the employer gives an off the cuff basis for the discharge, rather than a reasoned and logical basis. Often as not, the employment relationship just isn’t working out for either party even though it may be difficult to explain why, at the moment of discharge. This can get the employer in a jam down the road when it tries to raise a defense to a former employee’s claim that is inconsistent with what was said, emailed, texted, at the time of the discharge. Like in many things, distance via the passage of time can give the employer room to calm down, collect information in a businesslike manner, and have it ready for when a claim is made. Equally important, if the employee was discharged for multiple reasons, the employer’s defenses to a claim may differ depending on the forum (e.g., unemployment office, EEOC, Dept. of Labor).
I have advised many employers on discharge issues over the last 30 years. There are three general circumstances that need to be considered when formulating a discharge defense. Note that I only talk about a “defense”. That’s because an employer can not pro-actively file a claim relating to the discharge; any claims arising out of a discharge belong to the employee such as unemployment, age or gender discrimination, or violation of a contract.
The three circumstances, generally speaking of course, are when the employment is purely at-will; when there is a written disciplinary process whether employer created or via a union collective bargaining agreement; and when there is a written contract directly with the employee.
THE AT-WILL DISCHARGE EMPLOYMENT CLAIMS
By far the majority of employee separation events will be with “at-will” employees. In North Carolina, this is the default employment status of all employees. This means the employer can discharge an employee any time, for any or even no reason. These discharges are very often “undocumented” in the sense that an unsophisticated employer might not have a formal process for recording and maintaining employee disciplinary records. I’ll get handed a weeks’ worth of angry back and forth text messages and a hastily written email discharging the employee. At this point, the employer may be mostly stuck with what was contemporaneously texted or said on a job site, as its defense to any of an unemployment claim, a wage pay claim, a discrimination claim, or any other of a half dozen potential actions, all of which may have different defense postures we should take.
The employer needs to deal with these discharges before they occur. When a problem employee situation arises, counseling, training, an exit interview if possible asking the employee the reason why s/he engaged in the behavior, and formal, arms-length documentation of the employee’s actions should be created but not necessarily given to the employee. This is in case we need to re-review the employment situation when defending a claim. An example could be when an employee is chronically late for her shift, but then files a claim that she was late because her supervisor was harassing her. The employer’s defenses to an unemployment claim, and a discrimination claim, may differ slightly and must be coordinated and consistent when possible. These claims are brought before different government agencies and the statutes impose employer liability for different reasons. For this reason we may want to not contest the unemployment claim (and therefore stay “off the record”) because the liability is only slight; but contest the discrimination claim where there is a better defense and potential liability is greater.
THE WRITTEN PROGRESSIVE DISCIPLINARY POLICY
Larger and more sophisticated employers usually have written disciplinary policies outlining the conduct expected of an employee, and a progressive disciplinary procedure for violations of it (this includes collective bargaining agreements). A good HR department will see when a problem employee is in the system, and insure that the documentation of the problem is timely done, detailed, and consistent with prior disciplines for similar conduct. Giving an employee a chance to respond to a written warning or suspension puts the employee on record as to why s/he is engaging in the unwanted behavior. This locks down the employee to a version of events that would be difficult to contradict in a later, inconsistent claim. An example: the employee is chronically late for work; and on discipline or discharge for the chronic tardiness states that s/he has trouble catching the right bus to get to work on time. If the employee later files a sexual harassment claim as the reason for her tardiness because she hated working with that supervisor, the employer can defend it by showing the inconsistent employee response to the written discipline.
As a side note to claims where there is a progressive disciplinary policy: I’ve seen situations where an employee was discharged for multiple, unrelated violations of the conduct policy. This is fine, depending on what the conduct is. However, there may be a circumstance where the employer puts the employee into more than one funnel of the progressive discipline pipeline. An employee who is chronically tardy, and also has poor work performance, is an example. These two unrelated violations of what the employer expects from the employee have two different potential resolutions via counseling, training, and such. There’s no one right answer, however, so of course the employer should consult with me when preparing an employee file like this.
WRITTEN CONTRACT DISCHARGE CLAIMS
I treat these mostly like I would a situation where there is a written disciplinary policy, except now we have to read the written contract and apply what it says to the situation. My favorite situations are when an employer downloads some junk employment contract from the internet without reading it, understanding it, or knowing why it should or should not have been put in the contract. I make a lot of money off those situations defending employment claims because about 100% of the time the employer is stuck with something they didn’t really want or need, but because it’s a contract we have to apply its terms.
CONCLUSION TO PRESERVING DEFENSES TO EMPLOYMENT CLAIMS
The best time to prepare to discharge a problem employee and set up to defend employment claims is well before the employer even starts hiring. Good foundational processes and documentation will help the employer defend employment claims when they inevitably arise.
For all your businesses legal needs, call me in Asheville, Hendersonville, Fletcher, Waynesville, and all of Western North Carolina at (312) 671-6453, email at email@example.com, for more information palermolaw.com, and to download my V-card click HERE.