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March 16, 2015

Why Honesty is the Best Policy with Termination

Filed under: Discipline & Termination3:43 am


by Emily Sternberg, HR Consultant

Most employers have a traditional at-will employment policy that states either the employee or the employer can terminate employment with or without cause at any time with or without notice. This is a great policy … until the moment of execution when the manager wants to terminate an employee with little or no documentation. Conducting a termination by invoking the at-will policy may find your company at the wrong end of a discrimination lawsuit.

Employers who choose to hide behind a reduction in force or position elimination may also be at risk.  This strategy may be effective, unless the position is not eliminated and the “downsized” employee finds an advertisement for her eliminated position posted online two weeks later and sues the employer for discrimination or wrongful termination.

So, what strategies can an employer put in place to reduce the risk of being sued by a disgruntled former employee? Honesty is always the best policy and, in most cases, the reasons for termination should not be a surprise to the employee.

Following are a few steps to help reduce the risk of being accused of unfair employment practices:

  • Clearly communicate to the employee the specific performance issue
  • Establish goals for improvement
  • Identify a timeline for improvement
  • Follow-up and follow through with employee to ensure they understand the importance of improvement
  • Document all follow-up and action steps
  • Terminate employee if objectives are not met

Of course, there may be circumstances that require immediate termination. In these circumstances, best practices still dictate that the reasons for termination be communicated clearly to the employee.

Whether your organization needs help with performance management or any other HR related area, please contact HR Performance Solutions today.



August 28, 2014

ADA After FMLA – What Does Your Leave Policy Say?

A New Jersey healthcare provider will pay over $1 million to resolve claims before the Equal Employment Opportunity Commission (EEOC) that it committed disability discrimination. According to the EEOC, since the employer’s leave policy merely tracked the requirements of the federal Family and Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks.

The employer’s policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks, all without additional consideration of whether the Americans With Disabilities Act (ADA) required some additional accommodation, including additional leave.

Managing both FMLA and the ADA can be quite tricky at times.  Additional leave after FMLA is exhausted is considered a reasonable accommodation under the ADA guidelines and must be factored in to an employee’s recovery or health management resolutions.  Whether an employer extends leave or not could be a million dollar question!


August 28, 2013

A Good Reason to Document!

The law firm Ogletree Deakins recently reported on a 4th U.S. Circuit Court of Appeals case that illustrates just how important it is to have good documentation.  The case, Mercer v. The Arc of Prince Georges County, Inc., sheds new light on performance reviews, the Family and Medical Leave Act (FMLA), and termination of employment.

According to the records, Mercer worked for “The Arc,” a nonprofit organization, in a position that required her to process applications, renewals, and redeterminations for benefits under the Food Stamp Program and Social Security.  Early in 2009, Mercer took medical leave, which put co-workers in a position to perform her duties, where they discovered that some individuals that were food stamp eligible were not receiving benefits.  When Mercer returned, she was instructed to take care of those clients.

Several months later, she was given her annual performance appraisal, in which she rated ‘satisfactory’ marks in all categories, but one, which was rated ‘above average.’  A couple months after that, the problem of individuals still not receiving their benefits came to light, yet again.  She was directed to take care of those clients.

Early in January, 2011, she suffered injuries in a motor vehicle accident and utilized FMLA.  Again, co-workers found that her job was not being done properly and that many individuals were still not receiving their benefits.  After her return, an investigation ensued and she was subsequently terminated.

Mercer alleged that The Arc interfered with her right to use FMLA and that her termination was a pretext for retaliation based upon her use of FMLA.  She was unable to prove either claim.  Of interest to employers is that the Court’s findings demonstrated that even though she had positive performance reviews, this “did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave.”  Helpful, too, was The Arc had detailed documentation that specifically noted the errors of Mercer.  Another fact of note is that the co-workers who discovered the unpaid clients, were not the decision-makers in regard to her termination.

The importance of concise documentation can never be minimized.  Employers do well to document dates, times, specific information of the indiscretion/errors, all parties responsible, and persons making the discovery.  Arming themselves with proper documentation has saved many employers a lot of time, money, and unfavorable publicity.


Source:  Danaher, Maria, Ogletree Deakins – Pittsburgh Office. “Positive performance reviews do not negate employer’s ability to fire employee upon discovery of previously unknown poor performance.”  August 19, 2013.


February 20, 2013

Does Your Employment Policy Work Against You?

Filed under: Discipline & Termination9:14 am

It would be nearly impossible for an employer to envision every single scenario that may play out in their workplace in order to write the “perfect” policy to legally protect them and keep their employees safe.  Many things are simply beyond their control, such as their employees’ consciences and morals.  When employers’ policies and employees’ principles meet at the crossroads, who wins?  Consider two cases that will give you pause and cause you to question your workplace policies.

One such instance was when an AutoZone employee in Yorktown, Virginia, ran out the back door of the store while an armed robber was forcing his coworkers into a restroom.  He retrieved his gun from his vehicle and returned, foiling the robbery by confronting the suspect, who then fled the scene.  No one was injured.  Hero?  Maybe.  Two days later he was fired for violating the company’s no-weapons policy.  AutoZone’s decision brought them grief from the media, but they stood firm on their decision.

Another such case was a lifeguard who left his station to save a drowning swimmer in an area of the beach that was out of the lifeguard’s patrolling area.  When he vacated the station to bring the man to safety, another lifeguard repositioned to cover his area.  After saving the man and being considered a hero, he was fired for abandoning his post.  After much public criticism of the employment action, his employer offered him his job back.  He refused to return.

Both of these examples illustrate just how difficult it can be to have policies that are overly strict and don’t allow for an employer to make common sense decisions.  It is important to afford a little wiggle room in our policy wording instead of using absolutes, such as zero-tolerance (with the exception of sexual harassment), by inserting the words, “may be disciplined, up to and including termination.”  This gives an employer an option and helps them maintain the trust and respect of their workforce and their community.  In both examples, the good should have outweighed the bad!  Perhaps a written reprimand and a small hero’s parade would have been more socially acceptable!

Need help with your employment policies?  Check out our – A Complete Human Resources Compliance Solution!

Source:  Bill Leonard, a senior writer for the Society for Human Resource Management (SHRM).


February 8, 2013

HR Fact Friday: The NLRB and Employee Handbooks – An Update

Filed under: Discipline & Termination — Tags: 6:00 am

Recently HRN has published information in its monthly HR Legal Update online newsletter on the issue of the National Labor Relations Board (NLRB) and employee handbooks. Specifically, we discussed at-will employment and contract disclaimer sections of handbooks and noted a recommendation about adding language that indicated contracts could also be created by collective bargaining agreements (CBA). This recommendation resulted from NLRB decisions indicating that National Labor Relations Act (NLRA) would be violated if employees were required to agree that at-will status could never be changed (even, implicitly, by a CBA). It was also noted this is an evolving area of law. And it has now evolved. The NLRB General Counsel recently clarified this ruling and approved handbook language like those options below. According to another legal commentator who has published on this point, “The NLRB found that while the [employers’] disclaimers reaffirmed the at-will relationship, neither provision extracted a personal promise from employees to refrain from seeking to change their at-will status or to agree that their at-will status could not be changed in any way…[these] provisions simply prohibited the employer”s own representatives from entering into employment agreements that provide for other than at-will employment.” Here are the NLRB-approved options:

Option 1: “Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor or employee of the Company has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

Option 2: “The relationship between you and the Company is referred to as “employment at-will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at-will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.”

If you find this confusing, let HRN take away the legal and compliance uncertainty from your employee handbook and company policy manual. Check out HR Suite at:


December 12, 2012

Doing What’s Right Isn’t Always Easy

Filed under: Discipline & Termination6:00 am

One of the television shows I enjoy watching is ABC’s, “What Would YOU Do?”  It places people in real-life situations that create ethical and moral dilemmas.  Even though these scenarios are staged with actors, the individuals witnessing their unethical and most times shocking behavior, usually in a restaurant, bar, café, or on the street, are not actors.  The scene plays out and there is usually at least one person who stands up for what is right, while many others simply watch and are unmoved to act on behalf of the actor playing the “victim.”  I can’t help but ask myself, “What would I do?” if I were in that situation.

You may be wondering what this has to do with HR, but while reading some of the latest cases settled by the Equal Employment Opportunity Commission, I realized that ethical and moral dilemmas are faced by employees every day.  What should they do?  What will they do?

One such case was a race harassment lawsuit.  An African-American driver was being targeted by his dispatcher with racially offensive comments and epithets.    Others witnessed this ongoing discrimination and harassment.  One, yes, one white co-worker complained to management.  Management did not listen and act, thus, the lawsuit (EEOC v. Sutter Transfer Service, Inc., Civ. No. 2-11-CV-02569).  Both the driver and his co-worker were awarded a total of $30,000 to settle the case.

Another such case was that of a national origin discrimination suit where a hostile environment was created when Hispanic employees were subjected to derogatory name-calling, ridicule and demeaning slurs.  Even supervisors joined in and made “harsh admonitions to bilingual employees about use of their Spanish language on the job,” so states the EEOC’s press release.  Again, what caught my attention in this case (EEOC Case No. 3:11-cv-02581) against DHL Global Forwarding, was that one, yes, one non-Hispanic employee was “allegedly fired for a brief time after he reported the treatment of Hispanic employees.”

Both of these cases are wonderful demonstrations of courage on the part of the employees who reported their co-workers misery.  Harassment and discrimination are not things of the past.  We have not yet grown up because we still see the same child-like behaviors every day.  Employers are challenged to make important decisions about how they will address these issues in the workplace and what kind of policies they will have to help deter this kind of destructive behavior.  And, lastly, each one of us really needs to ask ourselves, “What would I do?”

Take a look at – A Complete Human Resources Compliance Solution.


November 21, 2012

HR Fact Wednesday: Performance Reviews for High Level Employees? YES!

Due to the Thanksgiving holiday I am posting my usual HR Fact Friday update a bit early this week. Now isn’t that something to be thankful for? Seriously, from all of the staff at HRN Performance Solutions to each of our viewers, we wish you a Happy Thanksgiving. We are truly grateful for the opportunity we have had for the past 23 years to provide our wonderful clients with cost effective HR solutions and consulting services that improve individual and organizational performance. Thank you.

Now for this week’s HR Fact. Does a company need to conduct and document performance reviews for their high-level executive staff? Of course. Any termination, regardless of position needs to be well considered and have supporting documentation. This is never more important than with executive staff who are the highest paid and also the most likely to seek legal representation. The most relevant documentation for any staff action involving disciplinary action including termination is the performance review.  Discharge or possible termination of a high level staff member where there was little or no evidence of any sort of performance review of that employee is walking on shaky ground and leaving the door wide open for costly litigation. These types of employees, usually the highest paid in your company, can be the most attractive to plaintiff-side employment lawyers anyway, but the failure to have any documented track record of discipline or performance review to support a discharge makes them even more attractive as plaintiffs. Employers need to effectively assess, review and document the performance of their top managers, just as much as they need to do so for other employees. Failure to do so exposes an employer to a potentially-significant risk of liability when a fired executive employee chooses not to depart amicably.


November 9, 2012

HR Fact Friday: The Ten Commandments of Firing

Follow closely all relevant company policies related to discharge, e.g. re: termination, progressive discipline and EEO. If you do not have any such policies, get some and train all persons who are to use them.

  1. Do not act alone. Two heads are better than one. Two witnesses are better than one. Avoid the “he said/she said scenario” played out in so many cases (remember Anita Hill and Clarence Thomas?).
  2. Never act out of anger. Wait until you are no longer angry and investigate thoroughly before deciding what to do. In an emergency, suspend (with pay for exempt employees).
  3. Do not give assurances of job security, long-term employment. Otherwise you may be creating contracts. If you have a contract, follow it.
  4. Clearly tell people what they need to do (a good job description helps). Honestly and fairly evaluate employees and performance reviews during performance reviews and document the same. In other words, be proactive in trying to avoid problems before it is necessary to terminate.
  5. Act based on job-related factors, not on personality or other factors not related to the job.
  6. Be consistent. Discrimination claims thrive where similar circumstances are not treated similarly.
  7. Be reasonable in establishing expectations of your employees and give clear notice of the same.
  8. Document your decision in writing. Remember that whatever you write will be “Exhibit A” in any lawsuit.
  9. Be humane and professional. Many lawsuits are filed for reasons of revenge.

May 8, 2012

SNOPA Would Prevent Employers From Snooping

For me, Facebook has evolved from a place to connect with friends to a way to share information: companies that want to advertise their newest products and innovations and charitable organizations I support telling me about upcoming events, for example.  I like the “one-stop shop” format where I can also find out the latest breaking news.  (Whether that’s new legislation or celebrity babies – no discrimination on my news feed!)  I do my best to keep my profile information private from strangers, and some information from even my closest friends (do I really want everyone to know my political views or what type of shampoo I “like?”).

Of course, these privacy settings can be frustrating for some employers who want to know this information.  So, they ask applicants or even employees for their passwords so they can view the information firsthand.  We first talked about this a while back, in my blog.  Some groups are fired up, and the American Civil Liberties Union (ACLU) is fighting back with the help of some legislators.

On April 27, 2012, the Social Networking Online Privacy Act (SNOPA) was introduced to Congress.  The ACLU believes the legislation is necessary to protect individuals who may feel powerless to resist a potential employer’s request for their username and password.  If passed, this legislation would make it illegal for employers to:

  • Access password-protected personal accounts or devices.
  • Require employees or applicants to provide Facebook passwords.
  • Put pressure on employees or applicants in indirect ways, such as “friending” them.
  • Discharge or discipline any employee who refuses to provide access to personal accounts.  This includes threatening to do so.
  • Refuse to hire anyone who will not surrender access to their private materials.

Late last week, Maryland became the first state to enact legislation similar to SNOPA.  S.B. 433 takes effect on October 1, 2012 and will prevent employers from requesting or requiring such private information.  The law also protects employees from discharge or discipline if they refuse to disclose and bars employers from refusing to hire applicants who do the same.

Maryland’s version protects employers in their right to investigate based on receipt of information about an employee’s use of personal web or similar account for business purposes in order to comply with securities or financial law or regulatory requirements.  Additionally, employees are prohibited from making unauthorized downloads of employer proprietary information to their personal website (or similar account).

California, Illinois, New York, Michigan, Minnesota, Missouri, South Carolina, and Washington are also in the process of similar legislation.

If you need some help with your privacy settings, check Facebook’s Help Center.

Hiring Trend Could be Invasion of Applicants’ Privacy


April 20, 2012

HR Fact Friday: Employment Law Update

The EEOC recently issued its new strategic plan and continued its litigation focus on what it calls “systemic” cases, i.e. cases that address a pattern, practice policy or class where the conduct at issue has a broad impact on an occupation, business or geographic area. Finally, a federal court recently issued a ruling in a case involving an employer sued for alleged Family and Medical Leave Act (FMLA) violations when it fired an employee who took leave saying he was sick when in fact the employee was gambling in Atlantic City. The employee tried to claim he was depressed by his gambling losses, and thus his FMLA leave was justified. Did he lose his case? You bet!

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