Termination Check List To Bullet Proof Legal Challenge

Because of the proliferation of lawsuits among white collar employers challenging employee terminations, even those that appear to be completely valid on their face, it is important for insurance industry executives to make sure that each termination, no matter how justified it appears, is thoroughly vetted prior to termination.  Here is a modern checklist that can help you avoid and or defeat lawsuits.

• How long has the employee been employed?

• Is the employer a member of a protected group?

• Did anyone make any assurances of job security to the employee?

• Does your handbook or any other company policy imply any form of job security?

• Will termination comply with the company practices in every respect?

• Have other employees been terminated for the same conduct?

• Can you prove the employee knew of or had reason to know his/her conduct was wrong or performance inadequate?  (In other words, avoid having the termination come as a surprise to the employee).

• How many written warnings has the employee been given?

• How long ago was the last warning?

• Was the warnings specific?

• Was the basis for the warnings documented?

•When was the last performance appraisal and what does it say?  (Avoid performance appraisals that are inconsistent with the reasons for termination.)

• When was the last salary increase and for what reason?

• Has the employee been recently promoted?

• Has the employee been given a reasonable time to improve after an unfavorable review?

• Was the employee promised a specific period in which to improve?  (Avoid “pulling the trigger”) prior to the time assigned for improvement.

• Are there any witnesses to a termination for improper conduct and are they reliable and available?

•What is the employee likely to say is the “real” reason for dismissal?

• Has the employee made any prior or contemporaneous claims of illegal conduct on the part of the company or its management?  (For example, complaining about improper harassment of any type).

• Did the employee recently sustain a work-related injury or illness?

• Did the employee recently apply for FMLA Leave or return from it).

• What will be the impact of dismissal on the employee?  (Is there reason to believe that the employee will seek out a lawyer to contest the termination?).

• Has the employee been, or claimed to be, a spokesperson for other employees regarding working conditions?

• Does the employee appear to be getting legal advice, keeping a diary, making recordings of workplace discussions with supervisors and management, or trying to commit your company to a particular position?

• Is the primary manager of the employee angry with the employee or dissatisfied with the employee for a reason other than conduct or performance?

• How long has the primary manager supervised the employee?  (Is there a difference between the new manager’s appraisal of the employee and the prior manager?).

• Is there any policy that provides the employee any form of procedural due process prior to being terminated?  (Check your employee handbook for provisions giving the employee certain rights to grieve, appeal procedures and so forth).

• Is there a personality conflict between manager and the employee?

• If the dismissal is being called a layoff, is it really a reduction in force (layoff) or an individual performance problem.  (Be sure to cite the correct reason for the termination and avoid generalities such as “you are no longer a good fit for us”).

• Is there any pay issue that might give the employee an opportunity to claim federal or state wage and hour violations?