Avoiding Employment Lawsuits–Part I

There is, of course, no absolute way to avoid employment lawsuits. There are simply too many possible claims out there, and there’s no way that an employer can avoid all mistakes all the time.  Moreover, an employer may be sued even when its decisions are perfectly lawful.

However, there are a few things which employers can do–or at least consider doing–to avoid employment lawsuits. 

Firing an employee is perhaps the most difficult thing you are called upon to do as an employer.  It’s stressful.  It’s disruptive.  It can damage morale.  At the same time, it can make for a better workplace.  It often sets an appropriate example.  It reenforces your policies and procedures.

Of course, it can also set the stage for an employment lawsuit.  In fact, most employment lawsuits arise out of employee discharges.

But here’s the too-oft-repeated scenario.  An employee is called into a meeting with his supervisor and maybe someone from HR.  He’s told that he’s being fired and should leave the premises immediately.  His supervisor escorts him back to his office or work area, watches him as he gathers his personal belongings, takes all keys or access cards, and then escorts him (or has him escorted by a security guard) off the premises. 

Is this necessary?  In a few–very few–situations, it is.  If an employee has threatened violence or the destruction of property (computer records, for example), then maybe this is the way the discharge has to occur. But that’s not usually the case. 

If you discharge an employee in the manner outlined above, you can rest assured that he’ll be angry.  He’ll later say that he was treated like a criminal.  He’ll express feelings of humiliation at being “tossed out” in front of his co-workers.

Ask yourself a couple of questions.  Is this way you would want to be fired?  If a lawsuit is filed, will you be comfortable in presenting the facts of the employee’s discharge to a jury?  Well, of course not.

Then what should you do?  Wait until the end of the day to meet with the employee.  By the time the meeting is concluded, most co-workers will have left for the day.  Allow the employee to go to his office or work station to have some time to himself and to gather his personal effects.  Ask the employee to leave his keys, access cards and other company property on his desk or in his work area.  Then allow the employee the space and time to leave with as little commotion as possible.

And, of course, what I’ve said above is my opinion on how this sort of thing should work.  Some folks reading this may disagree.  Or they may have an alternative way of handling this situation that has worked for them in the past.  I hope we’ll hear from them.  A little back and forth on this subject will be helpful. 

1. 

   Jon Hyman says:

   January 8, 2008 at 11:09 am

   Excellent point. I never understand why companies insist on treating employees, even bad employees that they are firing, like common criminals. There are certainly exceptions. For example, if I am concerned that the employee is going to a competitor and has access to sensitive or confidential information, I might not want that person back at their desk where he or she can start downloading. That scenario is certainly the exception and not the rule, and more often than not, treating employees in this manner will lead to bad feelings, which lead to lawsuits. However it is done, the termination should be done professionally and curteously.
2. 

   Will says:

   January 8, 2008 at 11:16 am

   Pretty solid and common sense.
3. 

   John Phillips says:

   January 8, 2008 at 12:39 pm

   Your exceptions are right on. But, as you say, they are the exceptions.
4. 

   John Phillips says:

   January 8, 2008 at 12:44 pm

   Thanks for the comment, Will. Please note the exceptions pointed out by Jon Hyman in his comment.