Periodically, your business in New York will want or need to terminate a worker’s or workers’ employment. Beginning well before such terminations, and throughout the working relationship, your company in New York must manage workers’ performance and misconduct in a manner that is likely to lessen the risk of lawsuits for wrongful termination.
So, too, your business in New York must address employees’ performance and misbehaviour in a way that is likely to increase your business’s chances of successfully defending any wrongful discharge lawsuits.
Below, I outline some best practices for employers.
Manage Employee Discipline
From the outset of employment, establish well-defined performance expectations.
Draft and distribute job duties and responsibilities, and keep them current.
Give, to your company’s employees, performance reviews.
- In the performance evaluations, say what is hard. Where warranted, be critical of the employee and state the employee’s deficiencies and shortcomings. If all of the performance reviews given by your company are stellar, or if all of the reviews are above average, that’s bad for the company.
- In evaluating workers’ performance, strive to be objective, not subjective. For example, in a performance review, do not call an employee a “troublemaker.” That nebulous term could refer either to an insubordinate employee or, instead, to a whistleblower.
- Be specific. Discuss particular incidents. Draft performance reviews in simple language, so that the worker, or a jury, can understand them.
- Avoid vituperative language.
- Include, in each performance review, a conclusion. State areas in which the worker must improve. Set forth benchmarks and time frames for the worker to make these improvements.
The most defensible performance evaluations are 360 degree evaluations. If an employee’s supervisors, co-workers, and direct reports all state that the employee is an obnoxious jerk, that view is persuasive.
Counsel employees about performance problems when they occur, throughout the year.
Make certain that the worker knows what his or her performance problems before he or she is fired.
Manage Employee Misconduct
Promptly deal with misconduct by your business’s workers. Otherwise, you’ll create a work environment of slackness and of lenience toward workers’ misbehavior.
In your company’s employee handbook, set forth rules of conduct. Disseminate the employee handbook to your workers. If a worker knew your business’s rules but violated them anyway, the worker’s counsel is less apt to sue. Further, if the worker does sue, your business is more likely to prevail.
Your company’s actions in response to workers’ misconduct may include:
- Verbal warnings or reprimands
- Written warnings and reprimands
- Suspension without pay
Think twice before firing an employee for off-duty misconduct. With certain exceptions, a company in New York State may neither fire nor refuse or hire an individual because of his or her lawful, off-duty, political or recreational activities.
In determining what discipline to impose for an employee’s misconduct, take into account, among other factors, how, if at all, other employees were disciplined for the same offense. If similarly situated persons outside a given employee’s protected group were not terminated for engaging in misconduct of comparable seriousness to the misconduct that the given employee committed, a jury may find that the given employee’s misconduct was not the true reason for his discharge, but was merely a pretext for discrimination.
Whatever discipline your company elects to impose on the misbehaving worker, document that discipline, even if it is only a verbal rebuke. If your business doesn’t document the discipline, the worker may believably deny that it ever occurred.
- The facts of the misconduct
- The names of the persons involved
- The company’s rules, if any, that the worker broke
- The discipline imposed
In Terminating An Employee, Treat The Employee With As Much Dignity And Respect As Is Feasible
In discharging a worker, treat the worker with as much dignity as is feasible.
For example, in the financial services industry, firms’ standard practice, upon firing an employee, is to have a couple of the firm’s security guards immediately escort the employee out of the building. This antagonistic practice incenses terminated employees, and makes them considerably more likely to consult with a lawyer about suing the firm for wrongful termination.
Nineteen times out of twenty, such immediate ejection of the worker from the employer’s premises is unnecessary. Instead, give the discharged employee the opportunity to say, to coworkers, his or her goodbyes. The (rare) exception is when the employer believes that the fired employee may threaten the safety of other employees.
Consult With a New York City Employment Lawyer Before You Face a Wrongful Discharge Lawsuit
If your business is concerned that firing an employee may result in litigation, it’s in your business’s best interest to consult with a New York City employment attorney before you fire the employee. A New York City employment attorney can help your company create, maintain, and fairly enforce good workplace policies and procedures. These preventative measures are businesses’ best defense against wrongful discharge lawsuits.
Further, a New York City employment lawyer can advise you on disciplining or terminating the worker in compliance with federal, New York State, and New York City laws prohibiting discriminatory discharge and retaliatory discharge. An experienced lawyer’s advice helps buttress your company against wrongful termination actions.