Category Archives: Termination

What Can You Say About a Former Employee?

Termination

So you fired an employee because you smelled alcohol on his breath right before he jumped into the cab of a company delivery truck. You let your assistant go because she was late for work at least two days per week and was recalcitrant when confronted.  You found your salesman so abrasive and arrogant that you couldn’t stand him and just eliminated his job one day.

If you are a Texas employer, what do you say about these and other former employees when their prospective employer calls for a reference? If you have attended any human resources management seminars in the last 10 years, you have been told to “say nothing”. Give out the dates of employment and salary, but no specifics on the employee is the frequent advice of employment lawyers.

I understand. I often say that too when I realize that explaining the nuances of giving out references takes too long and will probably be misinterpreted by my audience. But for this blog I am going to try to take off your straitjacket and tell you as a Texas employer how to give out informative references in a way that will give you a good chance of avoiding legal trouble: Continue reading What Can You Say About a Former Employee? →

Employees Who Lie

Discrimination, Documentation, Termination,

Have you ever discovered that an employee lied about something important at work? For example, what would you do if an employee called in sick on two scheduled workdays and then you found out she had really been in Las Vegas during her sick leave?

The Third U.S. Circuit Court of Appeals ruled that a city’s discharge of a worker for dishonesty about her sick leave was a valid reason for discharge even though she produced a doctor’s note confirming her illness. Hughes v. City of Bethlehem (October 2, 2008). The city suspended her without pay while they investigated her sick leave excuse and confirmed her little gambling jaunt. Since the investigation confirmed the employer’s suspicions of dishonesty, the city terminated her job.

She, of course, sued for everything but the kitchen sink, including gender discrimination, disability discrimination, unlawful retaliation for seeking accommodation under the Americans with Disabilities Act, violation of Family and Medical Leave, and deprivation of procedural due process, since she was employed by a governmental agency.

Fortunately, the Third Circuit was able to see through all the allegations to the main point: Continue reading Employees Who Lie →

Avoiding Ageism Claims, Part 3

Discrimination, Documentation, Termination,

As I have pointed out in the earlier posts in this series on age discrimination, the demographics of the available workforce are soon going to require you as an employer to recruit and retain older workers. With historically low unemployment rates in the Texas Panhandle, that time may already be upon us.

Many business owners and managers that I work with still seem to believe that at age 65, an employee becomes more of a liability than an asset. I recognize that group health insurance premium rates play a big part in that perception, but there is also an assumption that an older employee’s cognitive and technical skills diminish at that point. That may be true for a few employees, but many senior citizens do not exhibit those losses and remain solid performers. They often demonstrate much more loyalty, commitment, experience and emotional maturity than their younger coworkers.

However, there will come a time when you have had enough of an older worker who is not performing up to your expectations. Then you have to consider terminating that worker’s employment. How do you do this without guaranteeing an age discrimination lawsuit? VERY CAREFULLY! Here are a few tips on firing your oldest workers without your actions backfiring upon you: Continue reading Avoiding Ageism Claims, Part 3 →

Layoffs Can Lead to Lawsuits

Discrimination, Termination

The Department of Labor released new unemployment figures today. Nationwide, the unemployment rate is 5.7%. That is the highest it has been in 4 years. The DOL found that the manufacturing, construction and retail industries were seeing lots of layoffs, while education and health care are still growth industries.

In the Panhandle of Texas, the unemployment rate is not nearly as high. The last figures I found are for June 2008, and show that the unemployment rate is only 3.7% here. But that doesn’t mean that every industry is solid in our area. Several of my clients have recently laid off a few employees because of increasing expenses, mainly for transportation.

If you have to lay off employees, it is important to know how to do so without discriminating against any of the employees who lose their jobs. Just because you have an economic reason for your actions doesn’t mean that your business is immune from facing a lawsuit by one or more of the employees you laid off. In fact, in hard times, an employee who has been laid off may have difficulty getting reemployed and then decide he/she has little to lose by suing you. So here are some tips to protect your business during a layoff: Continue reading Layoffs Can Lead to Lawsuits →

Employers Can Face Criminal Penalities

Ethics, Management, Termination

Ionia Management is a Greek company that manages a fleet of tanker vessels. The company was convicted of a crime and sentenced for its role in falsifying records to conceal the overboard dumping of waste oil from one of its vessels into international waters. The case is now on appeal to the federal Second Circuit Court of Appeals.

Ionia Management says it was convicted based on the acts of rogue employees, who had been trained and repeatedly reminded of the company policy prohibiting the dumping but did it anyway. That leads us to the question of whether the company or its owners should face criminal fines and possibly jail for the acts of its subordinate employees. Or is civil liability in court more appropriate?

However you feel about criminal liability for corporate actions, in these post-Enron days, it is a fact of business. And as a employment lawyer, I feel compelled to point out a couple of the ways in which your employee relations can land you in criminal court. Continue reading Employers Can Face Criminal Penalities →

Employee Resignation Form

Documentation, Forms and Policies, Termination

I’m thinking of putting a form or policy online each Friday to help you as a Texas employer. Let me know what you think of that idea by leaving a comment.

Last Friday I posted a written warning form that you can adapt for your Texas business. This week I decided that I would post a written employee resignation form.

It is so important that you get your resigning employees to sign a written resignation. Continue reading Employee Resignation Form →

Employment Myths

Discrimination, Termination

         One of my favorite websites is the mythbuster site, www.snopes.com. It gives me a place to exercise my skepticism about whether the Proctor and Gamble logo is secretly a satanic symbol, whether a picture of a great white shark attacking a British military diver hanging from a ladder suspended by a helicopter is real and whether Madelyn Murray O’Hair (who died in 1995) is circulating a petition to have all religious broadcasting banned from the airwaves (all untrue, by the way).

          I wish there were a similar website for the urban myths surrounding employment law. There is a lot of misinformation out there that is believed by both employees and employers. These myths cause confusion and employment law errors that can be costly.

Continue reading Employment Myths →

Termination Checklist

Termination

 “Severance”, “job release”, “termination”: no matter what you call it, firing an employee is one of the hardest tasks you face in running your business.

It’s also one of the riskiest, since at least half of the discrimination claims filed with the Equal Employment Opportunity Commission involve discharges, rather than other adverse employment actions such as demotions or failure to hire.

There are many things to consider before you fire an employee. For example, what you call the termination is important. Juries often side with the employee in discrimination suits when the employer just doesn’t say what he means at the time of the termination. It makes the jury distrust a employer who uses corporate double talk such as “job separation” to describe a simple firing.

Newsweek reported in August 1996 that corporations had actually used the following euphemisms during the downsizing craze of the mid-90s: “release of resources” (Bank of America); “career change opportunity” (Clifford of Vermont); “rightsizing the bank” (Harris Bank of Chicago); “strengthening global effectiveness” (Proctor & Gamble); “normal payroll adjustment” (Wal-Mart). Continue reading Termination Checklist →