An Overview for Termination Decision Making

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on education law, intellectual property, business law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

An Overview for Termination Decision Making

The following overview should be considered in making the decision to terminate an employee legally defensible. The overview is limited to the information which should be considered during the decision making process for terminating an employee. Each employment decisions rests upon its own facts and may require independent analysis. Reliance upon this overview is not a substitute for legal advice from qualified counsel familiar with the specific facts and circumstances.

With that said, the decision making process should include review of the following documents prior to making any decision:

• The employment contract;
• The employee’s personnel file;
• Relevant policies and procedures, including employment policies;
• The discipline history of other employees for similar conduct; and
• Any documentation surrounding the current issue, including performance issues.

Decision makers should personally review the above documents as opposed to relying upon a summary provided by another employee or legal counsel.

In reviewing the above documents, the decision maker should also ascertain what type of employment relationship exists between the College and the employee. If the employee has no written contract, they are generally considered an at-will employee who can be terminated with or without cause so long as the employment decision is not based upon an illegal reason, such as: discrimination, whistleblowers protection activity or exercising other legal rights such as Family Medical Leave. See Note 1 below.
If the employee has a satisfaction contract, then the employee can be terminated if the employee is dissatisfied with the employee’s performance. A jury is not permitted to concern itself with whether the employer’s dissatisfaction is reasonable, but it may decide whether the dissatisfaction is insincere, in bad faith, dishonest, or not the real reason.

If the employee has a just cause employment contract, then the employee can be terminated if the decision maker can answer yes to all of the following questions:

1.    Was the employee aware of the College’s expectation and forewarned of the consequence for not meeting those expectations?

2.    Was the rule or policy at issue reasonably related to the orderly, efficient and safe operation of the College?

3.    Was the matter investigated fairly and objectively before discipline was issued?

4.    Was the employer given the opportunity to tell his/her side of the story?

5.    Has the College obtained substantial evidence of the employee’s violations or inappropriate conduct?

6.    Has the College applied its policies/procedures consistently and fairly?

7.    Is the degree of discipline imposed reasonably related to the offense, taking into account the employee’s work record and length of service.

After review the relevant documents and speaking with the employees involved, decision makers should be able to clearly articulate the rational for their decision. Answering the following questions will assist decisions makers in accomplishing this:

1.    State every act or omission of the employee that shows why an employment decision is necessary. This would include stating:

• What did the employee do or not do that constitutes a failure to perform their job;
• Is there a history of performance issues/behavior for this employee;
• Is there a history of similar performance issues/behavior by other employees, and if so, how were they disciplined;
• What Policy/Procedure did the employee violate and how did they violate it.

2.    Identify each and every document relied upon to make the decision, along with the information contained within each document which would support the employment decision. At a minimum, this should include:

• The Employment Contract;
• Employee’s Job Description;
• Employees Personnel File;
• Each College Policy or Procedure which applies;
• Any other documents evidencing the acts or omissions of the employee; and

3.    Articulate the specific statements from each witness which the decision maker relies upon to make the employment decision.

4.    Identifying the notice the employee had regarding the rule or requirement that was violated.

5.    Explain the investigation that was conducted and why no further investigation was necessary.

6.    Is a Performance Improvement Plan possible? In other words, could the employee, given the chance, correct the employment problems?

7.    Verify that the decision is not based on, nor motivated by, race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).

8.    Ensure that the decision is not based upon an employee’s reporting or threatening to report discrimination or some other suspected improper activity by the College, or participation in an investigation or lawsuit.

9.    Ensure that the employment decision is consistent with the College’s past employment decisions to make sure that all employees are treated the same;

10.    Finally, Determine that the College has complied with all requirements and procedure that might be imposed by the employment contract or the College’s policies.

Taking the time to answer these question during the decision making process will go a long way toward helping the College develop a legally defensible position should the termination decision be challenged in Court or before a federal or state Agency.  Please feel free to contact me should you have any further questions regarding this overview.

NOTE 1: The above analysis should include review of the following statutory schemes protecting employees:

Americans with Disabilities Act
•    Is the employee physically or mentally disabled?
•    If so, were attempts made to reasonably accommodate the employee’s disability?
•    Were reasonable accommodation measures well documented?

Title VII / California’s Fair Employment and Housing Act
•    Is the employee being treated in the same manner as other employees in similar situations?
•    Have other employees been given more chances before being terminated for the same or similar reasons as this employee?
•    If so, are there legitimate, non-discriminatory reasons for treating this employee differently than other employees?

Pregnancy
•    Is the employee pregnant? Employees are entitled to four months off for pregnancy related disabilities.
Workers’ Compensation
•    Has the employee filed a workers’ compensation claim? Terminating an employee who has filed a claim, intends to file a claim, or has testified in a worker’s compensation hearing could be considered workers’ compensation discrimination.

Retaliation
•    Has the employee reported any illegal activity of the company to a state or federal agency? Even if the company is not in fact acting illegally, the termination could be seen as retaliation for “whistle-blowing.”
•    Has the employee participated in any official investigation of the employer (i.e., wage or safety violation) or testified against the employer in an unemployment insurance or other hearing?
•    Is the termination in retaliation for the employee’s exercise of protected personal rights, such as freedom of speech or political activity?