Articles

Avoiding The Rush To Terminate

November, 2022

An October 27, 2022 article published by the Society for Human Resource Management illustrates the legal danger an employer faces if it rushes to judgment in the firing of an employee.

“One of the biggest missteps within many organizations is rushing to terminate an employee before the record is ready to support it.  When the lawsuits inevitably pop up, employers suddenly realize they moved too quickly to separate someone’s employment without having all the facts to justify a dismissal decision or to support a termination for cause.”

The article quotes an employment law attorney with Ogletree Deakins in San Diego:  “Employers, often senior executives who are extremely frustrated with a direct report’s ongoing performance or conduct challenges, push HR to ‘pull the plug’ before the record is in place to support that decision. An even if the decision was legal and appropriate, an incomplete record and perhaps problematic shortcuts hamper the organization’s defenses to legal claims.  Had the company simply slowed down at the finish line, and had HR been able to preserve a record substantiating the senior executive’s fiat to terminate at that point, much of the legal imbroglio could have been eliminated or at least mitigated.”

In addition, many times employers initiate such terminations without consulting their employment attorneys.

The article suggests that paid investigatory leave or paid administrative leave allows a company to complete its investigation, interview witnesses and hear the “soon-to-be-terminated” employee’s side of the story, and “check further into the facts.”