How To Avoid Wrongful Termination Claims



Posted: Friday, February 27, 2009

by
MMC Inc.

A termination spurred by conduct that is unlawfully motivated by sex, ethnicity or age discrimination, in furtherance of unlawful retaliation, or which breaches a contract, or violates a well-established public policy is "wrongful."  Such that courts in this country will generally award an employee suffering job loss as the result of a wrongful termination with civil damages. So what must an employer do when poor performance or a lack of business resources legitimately forces an adverse employment decision, or perhaps more curious when an employee simply quits because he or she believed their job was in jeopardy?  In a single word: document.

Documenting poor performance in a manner that a reasonable person standing in the shoes of a manager would reach the same business decision is key.  This means that if an employee is consistently reporting to work late, for example, despite verbal and formal warnings, the employer's documentation of those warnings coupled with the details of the infractions will likely withstand the preliminary investigation of a diligent plaintiff's attorney aimed at supporting a wrongful termination suit. 

Equally important to fending off wrongful termination suits is the application of fair and consistent workplace practices which demonstrate that all poor performance is addressed in a like manner that affords opportunities to correct.  In other words, it will not help your organization if you arbitrarily choose one employee to enforce the workplace rules against and document what may appear to be a singled-out effort.

Along the same lines, lay-off decisions should also be well supported with documentation.  Documentation that shows a clear, logical plan for eliminating certain jobs, for example, which are obsolete or can be performed by others with more job skills will undermine a wrongful termination claim.

As for what to do to avoid "constructive discharge" claims (where an employee seeks damages after voluntarily quitting because he or she was allegedly forced out of the workplace), documenting is again key.  Documenting progressive discipline efforts, ongoing efforts to educate employees as to their obligations to report unethical/unlawful conduct, and steps taken by the employer to assure all employee complaints are timely and efficiently addressed will clarify that the employee had viable options and did not have to voluntarily quit their job to avoid the alleged "evils" in a work environment.

At the risk of sounding cliché, "today's economy" demands that employers assure more than ever that they are strictly complying with laws protecting workers' rights and that absolutely means avoiding conduct which can be construed as unfair.  Whether faced with performance issues, lay-offs, or fear out of check in the workplace, MMC, Inc. is your source for helpful workplace guidance.  To learn more, do not hesitate to visit our website at www.MMChr.com for more help with managing your workplace amidst unprecedented challenges.

Crystal M. O'Brien, Esq. serves as MMC's Employment Law Manager/Corporate Counsel. After receiving a double-degree in psychology and sociology from Oberlin College in 1988, Ms. O'Brien earned a workers' compensation insurance claims adjusting license in 1991. She completed post-graduate studies in Human Resources Management at Portland State University's Graduate School of Urban & Public Affairs from 1996-1998 and earned a Juris Doctorate and Certificate in Dispute Resolution from Willamette University College of Law in 2001. Immediately following law school, Ms. O'Brien served as a judicial clerk to the Honorable Faith Ireland (ret.) of the Washington State Supreme Court. She is licensed to practice law in California Washington as well as before U.S. District Courts in each state. Collectively, Ms. O'Brien has 19 years of litigation experience.

To view her complete bio click here.

www.MMChr.com

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