Author : Emanuel D. Payton
Claims from disgruntled workers are on the rise. In 2012, for example, the EEOC reported that nearly 100,000 total charges had been filed nationwide! These claims include discrimination charges of race, sex, national origin, religion, color, retaliation, age, disability, and equal pay. In this two-part series, learn how to head off potential litigation by avoiding these top four mistakes by employers:
- Failure to document unsatisfactory job performance.
- Failure to terminate bad workers before it is too late.
- Failure to enforce the company’s harassment policy.
- Failure to give a reason for employment termination.
Mistake #1: Failure to document unsatisfactory job performance.
Not surprisingly, most supervisors do not like to discipline or write up workers. When poor performance becomes an issue, however, the employee’s records do not reflect prior warnings or dissatisfactory performance. Employers also invite trouble when an employee receives a raise or positive review and is subsequently fired for bad performance. Employers likewise face risk when an employee who has been terminated for misconduct or low performance is given a glowing recommendation. Documenting instances of discipline and giving written warnings are the best way to avoid claims of discrimination. Enforce all rules uniformly and on a non-discriminatory basis.
Mistake #2: Failure to terminate bad workers before it is too late.
Many supervisors hope that their poor workers will improve over time. However, keeping bad employees on the payroll despite repeated warnings opens employers up to claims of unfair treatment and lack of timely action. Moreover, poor workers who receive many chances to improve are often the most likely to sue when they are finally fired. Terminate a bad worker as soon as it is apparent that he/she is not likely to improve, and maintain appropriate documentation regarding any prior infractions.
Mistake #3: Failure to enforce the company’s harassment policy.
It is important to follow the company’s harassment policy and procedures for dealing with harassment claims. Respond quickly and effectively to any complaints of harassment or discrimination, whether by co-workers, customers, or other third parties. For example, even employers with the best policies and training programs on investigating workplace conduct and harassment can be held liable if they fail to investigate a harassment complaint. If the employer does not take corrective action when discovering the failure, these types of actions can appear to a jury as “utter indifference” on the part of the employer and consequently lead to an award of punitive damages. It is therefore important to take prompt and effective action.
Mistake #4: Failure to give a reason for employment termination.
Make sure you follow the company’s rules and be consistent – discipline and treat all employees the same for all infractions. Be honest and upfront with the employee about the reason(s) you are letting him/her go. If the employer does not give an explanation when it terminates employment, employees will try to figure out why they were fired and likely will presume the reason was discriminatory. At the time of termination, have a witness present, such as another supervisor or manager. If appropriate, you can give the employee a chance to explain his/her side of the story, but you do not need to change your termination decision.
