ALP: We need to discharge an employee who is not doing a satisfactory job. How can we do this without ending up in court?

January 2004
Business Courier

Although there is nothing you can do to guarantee no lawsuit, there are steps you can take to minimize your risk.

First, review your reasons for discharging the employee. Will the reasons seem sufficient to an outsider who doesn’t understand you or your business? Does it seem "fair?"

Second, consider whether you have provided the employee with notice of the problem and an opportunity to improve. Although this is not always possible or appropriate depending upon the circumstances, it is generally a wise practice. In the event of a lawsuit, it will help defend against claims that your decision was arbitrary or motivated by discrimination.

Third, ask yourself whether you have documentation of the problem and the steps leading to dismissal. Documentation is key. Accurate documentation drafted in neutral, professional terms will help you tell your side of the story and defend against claims of wrongful discharge in the event you are sued.

Fourth, consider whether this discharge carries "high risk" factors. Is the employee in a protected category? Has the employee recently filed a workers’ compensation claim? Made a complaint of discrimination? Served on jury duty? Been out on leave? Is the employee about to vest in a pension plan? Such factors may not automatically prohibit discharge. However, they do argue for getting one’s ducks in a row.

Fifth, consider offering the employee severance in exchange for a release of all claims. A properly drafted release may go a long way in insulating you from potential litigation.

Finally, consider consulting with an employment lawyer to make sure you have a handle on all the laws that may apply to your situation. An ounce of prevention is worth a pound of cure.