Appellate judge offers advice on employee discipline, terminations
Recommended by Human Resource Services
By Steve Bruce, HR Daily Adviser
If you think you have done everything according to policy when disciplining or recommending termination of an employee, will it stand up in court?
The Hon. Denny Chin, former U.S. District Court Judge and now court of appeals judge, offered the following suggestions during remarks at a Labor and Employment Law Seminar.
What can you do to avoid seeing Judge Chin in court? Here are his tips.
1. Don't discriminate. Know the rules and make sure your decisions are based on legal, business reasons.
2. Supervise your supervisors. Communicate with them, train them, watch them, and deal with infractions.
3. Be brutally honest with employees. Terminated employees who believe that they had no warning that their work was substandard are angry and juries are sympathetic. If you withhold information, you will pay.
4. Grade low. If a "poor" performance rating follows a string of "high" ratings, it looks suspicious.
5. Never say or write anything you will regret. One bad sentence in an otherwise routine communication will catch the jury's attention. Also, remember that many employees will surreptitiously record conversations.
6. Make a record, but not unfairly. If you have written no memos for years, and then you write a sudden string of memos right after the employee makes a complaint, the jury will construe a case of discrimination.
7. Don't let a weak discrimination case become a strong retaliation case. Remember that employees have a right to make complaints without retaliation. All too often the discrimination case is thrown out but the retaliation case sticks.
8. Be fair even if you don't have to as a matter of law.
Staying out of court – an HR priority, but increasingly a challenge, what with changes in the laws, stretched budgets, over-worked people. And, of course, avoiding lawsuits is just one of what, a couple of dozen recurring HR challenges? What about FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?