Give your labor attorney a break

By G. Phillip Shuler

A decision by you, an employer, to discharge an employee usually represents a failure of the employer. Think about it. You decided to hire the employee presumably because you had a need and made a judgment that this person could satisfactorily fill this need.

You invested time and dollars in hiring and training this individual and now by discharging him or her you admit you made a mistake either in your hiring decision or in not being able to incorporate him or her as a productive member of your team.

Now, as frequently occurs, this employee has decided to sue and you find you will have to pay for your mistake. Have you made your labor attorney's job in defending your mistake a nightmare or a cakewalk?

We are experiencing cases where we are asked to defend discharges based upon poor or nonexistent documentation. For example, we are frequently asked to defend a discharge for poor job performance yet the employer's documentation fails to demonstrate poor performance or shows that other employees had the same or worse performance issues.

Many discharge cases have no documentation of warnings, or worse, have evaluations that contradict the asserted poor performance. Juries dislike employers who fail to give employees an opportunity to correct their poor performance and dislike employers even more whose own records contradict asserted poor performance.

If you maintain a formal evaluation process, make certain you do the following:

1. Train your staff in the evaluation process and assure they understand that factual, candid, reliable feedback is key.

2. Provide for multiple evaluations to guard against personal bias, either favorable or unfavorable, and to cover the entire evaluation period.

3. Assure the evaluation is based upon job content and avoid personal feelings and comments about such things as physical appearance and habits.

4. Establish clear and realistic performance goals and use weighted numerical ratings to measure attainment making certain the weighting takes into account the relative importance of each factor.

5. Assure that your evaluators do not rate many employees identically but that they make a real effort to evaluate the particular employee with candor, not diplomatically. Evaluators must be as specific and detailed as possible and refer to specific incidents, warnings and counseling.

6. Require evaluators to be professional in the form of the evaluation, use proper grammar and punctuation because sloppy records will not impress the decision makers.

Before making any discharge decision, consider the following:

1. Is the employee in any protected category (e.g. race, sex, pregnancy, age, disability, union etc.) and are there any facts to suggest unlawful motivation?

2. Have you thoroughly investigated the facts surrounding the discharge? Have you given the employee a chance to respond?

3. Is your documentation in order? Have you reviewed the documentation?

4. Did you give the employee notice of the performance problem or rule he or she has violated and is this discipline consistent with other similar problems or violations and company policy?

5. Is the decision likely to be seen as fair by a neutral third party?

Having good documentation and following these steps will not ensure you will not face a lawsuit for a discharge decision, but they will sure make the job of your labor attorney a lot more likely to be one with a good outcome.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.