4. They don't document performance problems. "If you've had problems with an employee, it must be reflected in performance reviews and if not, you must be writing up employees' performance deficiencies," says Gee.
She's seen plenty of managers fire employees for cause after having multiple conversations with employees about their performance, but they never document any of these conversations in employees' HR files. Without documentation, she says, an employee has a stronger case for wrongful termination.
5. They make inappropriate comments about the employee via email. Bryan Cave's Moore warns managers to be careful about the things they write in emails regarding employees whose performance may warrant termination. "Those emails are all discoverable in a case," she says. "Those are documents that could become public."
6. They don't give employees appropriate notice. Under the WARN (Worker Adjustment and Retraining Notification) Act, employers with 100 or more full-time employees that are closing a facility and laying off at least one-third of their workforce are required to give those employees 60 days' notice of the layoff.
Common Mistakes Employers Make During a Termination
Given that terminations are one of the most difficult personnel issues managers have to deal with, it's easy to bungle them. Avoiding the following pitfalls will reduce your risk of a wrongful termination lawsuit.
1. The manager doesn't plan for the termination meeting. Winging a meeting with an employee you're going to fire is a bad idea. If you don't prepare what you're going to say to the employee, you could speak out of turn, and your comments could be fodder for a lawsuit.
Indeed, managers need to plan a variety of things in advance, says Moore: What they're going to say during the meeting. What's going to happen after the meeting. Whether the employee will be allowed to collect his belongings from his desk, or whether the company will pack them up and send them to him. If the employee has company files at home, the manger needs to figure out how to get those files. The manager needs to cut the employee's final paycheck and include pay for any unused vacation. The manager also needs to provide the employee with a COBRA notice so he knows how much it will cost to continue his health insurance.
Planning the details of the termination helps demonstrate respect for the employee, says Moore. "It shows you care enough about the employee to think about the questions and issues the employee will face," she says.
2. Employers treat it like a cattle call. Gee has seen employers who have to do large layoffs round up employees like cattle in a conference room and tell them all at once that they're getting pink slips. She says this disrespectful tactic breeds ill will among the affected employees toward their former employer.