Faced with a firing, managers are typically upset and uncomfortable. They want to just “get it over with.” Stop right there. Slow them down, and ask these 7 questions first. Otherwise, you’re likely headed for an expensive lawsuit.
Here are the 7 questions BLR experts recommend you ask before any termination. If your answer to any of these questions rings a worrisome note, review the situation carefully before making a termination decision.
1. Have you followed your own policies?
Most organizations have a discipline policy that covers termination. Check your policy to be sure that you have followed it, especially if your policy calls for “progressive discipline” or suggests that employees are fired only for cause.
Policies generally reserve the right to skip steps in the progressive discipline system and fire immediately for certain offenses such as stealing or violence. However, you should exercise this right with caution.
2. Is there a contract or other guarantee?
If the employee in question has a written employment contract, you will probably be bound by its terms. Even in the absence of written contracts, many courts have found that certain documents, such as employee handbooks or offer letters, can create implied employment contracts. For example, your policy or handbook might inadvertently:
- “Guarantee” a job as long as work is satisfactory.
- Require arbitration or other alternate dispute resolution approaches.
- Mandate progressive discipline.
3. Is there a union agreement?
If the employee in question is covered by a union contract, you must determine whether this termination would be contrary to union contract provisions.
Furthermore, if the employee has been involved in union organizing, you must weigh whether the offense for which the employee is to be terminated could be considered “concerted activity” or whether the termination could be considered retaliation for union activity.
4. Have you been consistent?
Consistency is an important part of fair treatment. If you have consistently terminated others for the same offense for which you want to terminate this employee, you are probably going to be all right. If, however, you have never terminated a white male for a certain offense, and now you intend to terminate a black male for that offense, you could be on thin ice.
5. Could this firing be viewed as discriminatory?
Could the employee claim that he or she was fired not for the reason the organization claims, but because of discrimination? (”You fired me because I am [old, black, Muslim, gay, disabled, etc.], not because I broke a rule.”)
6. Could this firing be viewed as retaliatory?
Could the employee claim that he or she was fired for performing a protected activity? For example, making a complaint to a government agency, making accusations of sexual harassment, or making a workers’ compensation claim? If so, look at the situation carefully.
7. Is the employee pregnant?
In general, treat pregnant women the same way you treat any employee with a disability. You may not fire a woman because she is pregnant.
Have some pre-firing questions that you think should be added?
Nick Reddin
