Best Practices For Employment Terminations

I have heard way too many stories lately about easy-to-avoid wrongful termination lawsuits. Whether an employee is let go because she did not meet expectations after being given many opportunities to improve or just because painful cuts were necessary, it needs to be done right. Bringing termination processes in line with best practices will avoid confusion and painful (and expensive) disagreements. Here are some clear guidelines that offer employers the best chance of staying out of trouble and out of court. Not surprisingly, they can be helpful for employees as well.

 I will focus in more depth on each of these areas in my next several posts.

• In almost all states in the United States, there is a presumption of “at-will” employment. That means that unless there is a contract stating otherwise, either the employer or the employee can terminate an employment relationship at any time, with or without notice, for any lawful reason. Make sure employment at-will status is clear and known. This means it is clearly stated in every offer letter and mentioned and defined in any policies or handbooks.
• Make sure policies do not undermine the at-will employment relationship, such as those guaranteeing progressive discipline prior to termination.  If there is a progressive discipline policy, make sure it is clear and followed universally. Also make sure exceptions to progressive discipline are clearly stated and are used only in those circumstances.
• Make sure disciplinary documents and processes do not undermine the at will status -- a 6-month probationary period or a 3-month performance improvement plan should be accompanied by language specifically re-affirming the at will status, even during designated periods.
• Once the decision has been made to terminate someone’s employment, regardless of the reasons, have a clear understanding of what the reasons are and what should be articulated. Make sure no one is off message. If it is performance related, DO NOT pretend it is a layoff. If it is a layoff, be honest about that. Regardless of the reason, stay professional and DO NOT disparage the employee or engage in re-hashing the past or assigning blame.
• Be particularly careful when terminating the employment of employees who may have or think they have a claim for wrongful termination. Have they recently reported behavior they believed was illegal? Have they recently cooperated in a government investigation of the workplace? Have they recently exercised their right for family leave? Have they recently complained about harassment, discrimination or wage payment irregularities? If you answer yes to any of the above, seek advice from employment counsel BEFORE moving forward. Regardless of your relationship with the employee, if the employee is in any protected categories (age, religion, race, sexual orientation etc.) take extra time to review the decision carefully and contact employment counsel if you are unsure.   
• Make sure you provide all of the appropriate post-termination documents. This includes information about COBRA, where applicable, and other benefits, unemployment compensation, etc.  Be mindful of final pay requirements, including whether unused vacation is considered wages in your jurisdiction. If you do not know the requirement in your jurisdiction, you can check on findlaw or contact your employment counsel. Make sure to time the effective date of the termination so that you are able to pull together everything you need in time.
• Remember, notice before a termination is not a legal requirement. Providing some notice is considered a courtesy, but does not enhance your legal position in any way. Consider using severance as a way to both soften the blow for an employee and manage legal risk. The idea is simple – an employee provides a release of claims in exchange for a lump sum or continuation payment(s).  If you are offerring severance, be prepared with severance documents when you provide the termination notice. Make sure you include the appropriate federal and local statutes and language – especially for employees over 40.  Contact employment counsel if you are unsure. Do not provide severance payments without a release.  Nothing stings more than being generous post-employment and then getting sued!  
• Respect the dignity of terminated employees.  Treat them professionally and, regardless of their reactions, always act to maximize the possibility of having positive future relationships with departed employees.  Never share information on the circumstances of a termination with anyone without a business need to know.  The sooner a terminated employee moves on professionally and personally, the better for your organization, so help them to get there if you can.  Never provide negative references, instead confirm position and dates of employment.  

While nothing can guarantee a smooth employment termination process, following best practices can help insulate employers from making needless mistakes.  It is worth the time and effort now to avoid the headache later.  

New I-9 Form Becomes Mandatory May 7.

The 1986 Immigration Reform and Control Act (IRCA) requires U.S. employers to verify the identity and work eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. Employers are required to complete an Employment Eligibility Verification Form I-9, for every new employee.  The recently published new I-9 form becomes mandatory for all new hires beginning on May 7, 2013. Until then, employers may continue using the old form, at their discretion.  Employers should not complete a new I-9 Form for current employees for whom an I-9 Form is already on file.

The new form is two pages, which should reduce confusion about which part is to be completed by the employer and which by the employee, since each is now on a separate page. Additionally, the new form contains fields for foreign nationals to provide their I-94 and passport numbers, and provides clarification about acceptable documentation.  In addition, beginning April 30, 2013, through a new automated I-94 process, foreign nationals will be able to access their I-94 number through a secure website. 

I-9 Forms should be completedby a new employee by the first day of employment, but may be completed by the employee any time after the acceptance of the job offer.  Employers should review the employee's documents and complete the Employer section of the I-9 within (3) business days of the first date of employment. 

In addition to the new form, a new Handbook for Employers on filling out the I-9 was released.  The new form is available from the USCIS website or here.  

Lessons On Bad Deeds and Last Chances....

Between Jerry Sandusky, Bernie Fine and Mike Rice, one might assume that big-team athletics coaches routinely act in wildly inappropriate ways, only to have management cover up their problems or wrist-slap them to save the program.  Of course in these recent notorious cases the actions eventually came to public light and blew up quickly and large.  While these sports-world tales have seemingly little to do with the more average workplace with its more average problems, they serve as cautionary tales -- specifically with regard to the importance of good employee management of misdeeds.

The key mistake made in each of these cases was the decision-makers NOT thinking about what would happen when the story of their response became known.  In the public world of sports, that is an unforgivable error.  But the same error can be similarly fatal in the average workplace when dealing with sticky situations.  If employers were to adopt the standard of "How would an article about this sound to me if I were reading it in the paper?" many problems could be avoided.

This standard cuts both ways -- it means freeing employers to act reasonably following an investigation, even when they may feel someone is 'untouchable' because they are the only Muslim/Jewish/gay/immigrant/disabled/over-40 employee or because the employee recently complained about harassment or took FMLA leave.  More importantly, it also means forcing employers not to look the other way or give "one last chance" or "cut a little slack" when a long-time or highly compensated or otherwise "good" employee does something egregious.  Of course, in most cases, when there is an employee issue, a measured, reasonable response is in order. Employees who are treated fairly and with respect tend to have loyalty and perform better.  The problems occur, however, when the actions or misdeeds are truly big or when the mistakes are smaller, but the perpetrator is higher up or "too important" to the Company.  In some cases, the analysis might require a more nuanced legal approach, but employers would be better off starting the analysis imagining how the action they are about to take -- or not take -- would sound in a national paper explaining the facts. If the thought makes you smile a little, you are likely doing the right thing.

Mass. Federal Court: Employees Must Follow FMLA Rules

This week, in what may be seen as a gift to employers, a Massachusetts federal court upheld an employers right to require employees to follow the rules when requesting FMLA leave. The Court found that the employee, who suffered from breast cancer, failed to make the necessary good faith effort to provide timely FMLA certification to her employer and so could not claim her unexcused absences were covered by the FMLA.  The case, Brookins v. Staples Contract & Commercial, Inc., provides employers with a real life example of what employees can and cannot do with regard to FMLA leave.  

The employee, Brookins, suffered from a recurrence of breast cancer.  Brookins also had a record of unexcused absences, which put her at risk for termination.  When her employer brought her attendance problems to her attention, Brookins disclosed for the first time, the recurrence of her illness and stated that many of the absences at issue were related to her treatment.  In accordance with the FMLA regulation (29 C.F.R. § 825.305(b)), the employer gave Brookins 15 days to return the certification form.  

When Brookins did not return the certification for approximately 6 weeks (after having been granted numerous extensions), her employer converted her absences to unexcused leave and terminated her employment. Brookins sued for FMLA interference and retaliation, both of which the Court dismissed on summary judgment.

Insights for Employers

Under FMLA regulations, while employers have the right to request that an employee obtain sufficient medical certification to support an FMLA covered absence within 15 days, employees failing to comply can maintain their entitlement if the request for certification when it is "not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts."  29 C.F.R. § 825.305(b)

Since Brookins blew the 15 day turnaround, she could save her FMLA claim only if she could establish "diligent, good faith efforts" to return the certification on time, which the Court found she did not do. Brookins asked two surgeons to fill out the form.  Each declined.  She did not do anything else to fulfill her obligation and so the Court found she did not meet her burden.

The Court pointed out what Brookins could have done but did not, namely:

1. Asking her primary care provider, her oncologist or her OB-GYN for the certification, since she saw each of them soon after she had requested the certification from her surgeons;
2. Contacting the surgeons she had asked for the certification again, explaining the importance of completing the certification;
3. Mailing or hand delivering the form to any of her doctors.
4. Contacting her employer to explain her difficulties in obtaining timely certification and requesting an extension before the 15-day deadline expired. 

Each of these steps not taken provides employers with a helpful example of what they can expect from employees requesting FMLA leave.  Employers can deny a request for FMLA leave to employees who do not comply with their obligations to use diligent good faith to provide certification.  29 C.F.R. § 825.313.

Simply, even employees otherwise eligible for FMLA leave must follow the rules in order to be covered by the law's protections.