Regularly review your company's written employment policies: The 10 Commandments

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February 07, 2016


1. Regularly review your company's written employment policies, handbooks and other employee documents that relate to or describe the grounds for terminations or layoffs. These written materials should be reviewed and updated regularly to avoid staleness and to delete any phrases or provisions which make employment guarantees or promises, or give the impression of employment for a specific term or duration, or even permanent employment. Employees' at-will status should be reinforced in all written employment applications, policies and documents. Policy manuals and employee handbooks should clearly state that they are intended only as "a guide" for personnel policies and procedures, and are not intended to create an agreement or contract of employment or promise of continued employment. If distinct standards of conduct apply to different classifications of employees, they should be clearly described.

Formal review and adherence to written company policies and thorough documentation regarding terminations will help assure that you treat similar problems or issues consistently. One of the first questions asked by an EEO or Human Rights Commission investigator looking at a discrimination claim is whether other employees were disciplined for the same or similar conduct and, if so, how were they disciplined.

Investigators can demand to look at the employer's company-wide data and disciplinary records on this point. Employers hire, train and empower supervisors to supervise and managers to manage. They should be given the tools and responsibility to do so fairly and uniformly.

2. Written standards of conduct applicable to employees should be reasonable in their scope and expectations, and clearly and succinctly describe acceptable and unacceptable conduct. Supervisors should understand that their conduct should conform to the same standards expected of those they supervise. Listing employee conduct, or misconduct, that may result in termination, should not be described in terms of "for cause" or "just cause." Such language may later be argued to significantly limit management's absolute right to terminate employees.

3. Employers should take every opportunity to create documentation favorable to establishing and preserving management's rights with respect to discipline and termination. Such documentation includes "at-will" employment statements and related disclaimer statements clearly stating that the policies and rules do not constitute a contract of employment. Employees should be asked to sign receipts for the documents containing such statements and disclaimers that specifically indicate that they have received and reviewed the employer's documents and understand that the employment relationship is at-will, and may only be changed by written agreement of a company
officer.

4. Employee performance evaluations must be an honest and thorough reflection of the employee's performance strengths and weaknesses, in order to be useful for their intended purpose to support future employment action. As a general rule, supervisors tend to inflate the performance reviews of the employees they supervise. Employees recognized as poor performers on the floor are unnecessarily evaluated as marginal or competent. Truly marginal employees are puffed-up with satisfactory evaluations; and employees merely performing at a satisfactory level become the standard for your best and brightest. Performance evaluations should provide employees
with adequate notice that the employer's performance expectations are not being satisfied.

The only true way an employee can adequately gauge his performance and correct his deficiencies is if the employer provides adequate notice of performance expectations and an honest appraisal of the employee's deficiencies, together with the opportunity to conform his performance. In the absence of notice and the opportunity to correct perceived deficiencies, an employee will be blindsided by unexpected criticism or discipline. This resulting perception of the employer's unfairness produces anger and bitterness that often stimulates wrongful termination and/or discrimination claims.

Inflated performance appraisals give a false sense of security and deprive employees and employers of an early opportunity to address productivity and performance problems. Furthermore, evidence of inconsistency between the employee's inflated performance reviews and the employer's claim of poor performance as the basis for discipline or termination, will be harmful to the employer. Such inconsistency can result in circumstantial evidence of what the law refers to as "pretext." An employee who can establish pretext stands a good chance of winning before a jury in the context of an employment discrimination case.

5. The fifth commandment is to implement and follow progressive discipline procedures consistently. Such procedures are useful in demonstrating to an investigator or a jury that the employer dealt fully and fairly with an employee before taking the ultimate disciplinary action. Progressive step-discipline, followed consistently and fairly, can be positively characterized as the employer's efforts at "corrective counseling," as opposed to punitive punishment. In a punitive disciplinary system, the nature and purpose of the discipline is to obtain employee compliance through punishment.  Conversely, a system of corrective counseling seems to develop employees responsive to
employer needs and committed to improving themselves and their productivity.

6. Designate a single individual with authority to examine and determine relevant factors warranting termination.

7. Provide for a "second opinion" review of terminations by another independent observer. These elements are intended to allow the employer to independently consider such issues as age, strength of the employer's evidence, the employer's history in consistently applying company rules and policies in the same and similar situations, as well as identify any mitigating and extenuating circumstances. One of the most important functions of these steps is to confirm that the employee had a full  and fair opportunity to "tell his side of the story."

8. The eighth commandment requires that the employer's decision to terminate an employee should be clearly and honestly communicated to the employee. Angry exchanges foster the potential for defamatory statements and should be avoided. The decision should be communicated in a general, yet informative manner so that the employee will know the employer's true reasons for the action. Avoid being too specific, since honest, general statements are less likely to provide an employee with ammunition to argue inconsistent employer positions.

9. Next, the discharge "meeting" should be conducted respectfully, with dignity and confidentiality. The Golden Rule applies with respect to the employer's dealings with the terminated employee. Maintaining confidentiality is an overriding concern to avoid potential claims of defamation and breach of confidentiality. Supervisors and managers with a strict business-related need to know should be informed
of the decision and the basis for it, so that they can avoid "gossip on the floor" created by a vacuum of information regarding the particular employee and the circumstances of the termination. Discussions regarding the termination must be on a "need-to-know" basis
only.

10. Lastly, when the employer's investigation, file and documentation review indicate the presence of a potential risk of future litigation arising from the termination, yet business necessity dictates that the action be taken, consider avoiding litigation by the use of separation agreements containing releases and/or waivers in exchange for "severance pay," benefits extensions or other forms of legal consideration to the employee. Keeping in mind that the cost of litigating a wrongful discharge or discrimination lawsuit can be financially disabling, not to mention time-consuming, a properly drafted settlement agreement containing a release and/or waiver of potential claims will be much less expensive and time consuming than the possible alternative, a lawsuit.


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