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The Retail Employer

The Retail EmployerMarch 2008

Ten Questions to Answer Before Terminating an Employee

by Joe McCluskey

Whenever an employee is going to be fired, you should recognize that the termination decision may be questioned or second guessed by someone – the VEC, EEOC, a jury, etc.  Here are ten questions to ask yourself before implementing a decision to discharge an employee.  If you go through this process, it is less likely a termination decision will be challenged and, if it is challenged, it is more likely that your decision will withstand scrutiny.

  1. Are you acting out of anger? Don’t. Managers do not make their best decision when they are reacting.  It is alright to step away from a situation, no matter how clear the decision seems to be, to make sure you have considered the relevant issues coolly and calmly.
  2. Has there been a complete investigation?  An incomplete or haphazard investigation will almost always come back to haunt an employer if the firing is challenged.  Different situations call for different levels of investigation.  For example, a sexual harassment investigation may require more interviews than a situation where an employee has been fired for insubordination.
  3. Is there appropriate documentation of the facts? Documentation is critical.  A document that accurately lays out the facts and the reasons for termination provides a tremendous amount of support for the decision.  Contemporaneous documentation—that which is prepared at the time of the decision—is far more valuable than documents created later, in response to an EEOC charge or lawsuit.
  4. Have relevant records been reviewed? A case is weakened if, for example, an employee is terminated for poor performance, but received an excellent evaluation only a month before the termination, or if the personnel file does not contain any prior warnings about performance problems.
  5. Has the employee been given the opportunity to tell their side of the story? This serves three general purposes.  First, you may learn new information that could change the decision.  Second, it locks the employee into their story and limits their ability to come up with a completely different story later on.  Third, an employee wants to be heard.  If the company is not willing to listen to him, he may feel the need to tell his story to the VEC, EEOC, etc.
  6. Did the employee have reasonable notice of the problem or rule? The law does not require that an employer be fair; however, an employee should not be fired for either a rule he did not know about or poor performance that he was not counseled about.
  7. In a case of unsatisfactory job performance, has the employee been given adequate notice of the deficiencies, and reasonable opportunity to correct the problem? In poor performance cases, an employer should make sure that the employee understands the problem, and the employee should be given additional training, if warranted, and a reasonable amount of time to correct the performance deficiency. 
  8. Is the discipline consistent with that which has been imposed for similar offenses in the past?  Like situations should be treated alike.  Inconsistent discipline is difficult to explain and can support an allegation of unlawful discrimination.
  9. Is the discipline consistent with company policies and practices?  Relevant company policies and practices should be reviewed to make sure the decision is in harmony with them.
  10. Can you justify the discharge as fair? Again, no law says an employer has to be fair.  But, morale can suffer if employees perceive the discharge as being unfair because they then fear that they may also be fired for an arbitrary or unfair reason.  Also, a government agency, court or jury reviewing the termination decision is made up of employees.  All of these employees expect to be treated fairly and will consider the fairness of the situation, even though there is no fairness requirement.

These ten questions may take a little time to answer before a termination, but they can save a lot of time and expense if the firing is ultimately challenged.

Joe McCluskey has advised and represented employers with respect to legal issues in the workplace for 23 years.  Joe works with David Nagle in the Richmond office of Jackson Lewis.  Jackson Lewis has over 450 attorneys in 32 cities across the country, representing management exclusively in workplace law and related litigation.  He may be reached at (804) 212-2851, or by email at mccluskj@jacksonlewis.com.

David E. Nagle has advised employers with respect to legal issues in the workplace for over 25 years.  He is a partner in the Richmond office of Jackson Lewis, a law firm devoted exclusively to the representation of employers in labor, employment, employee benefits and immigration law matters.  Jackson Lewis has over 450 attorneys in 32 cities across the nation.  David may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500. Back to top

Managing the Generation Gap—Salary, Benefits & Rewards

In a workplace made up of four generations, each at distinctly different stages of life, the subject of benefits and pay can be tricky to navigate. In fact, HR professionals say that vastly different needs among the generations are causing companies to offer a wider range of incentives with more flexibility than ever before, according to a recent Society for Human Resource Management survey. Experts suggest offering a diverse sample of options across the board. So, how can you choose what offerings best fit your workplace? Here are some important areas to consider.

Compensation

This is a hot issue with all generations in the workplace. Many Traditionalists and Baby Boomers are choosing to remain in the workforce, though many of them opt for a drastic career change like moving from the corporate world to driving a truck cross-country. Even when they select a new field or position, workers in these groups tend to feel that compensation should favor those with more years of experience in the workforce. On the other hand. Gen X and Gen Y argue that knowledge, training and capability should get top dollar, regardless of years of experience. That’s why offering top compensation is important for attracting and retaining the best candidates across the generational span.

Retirement

Even if they are choosing to remain in the workforce, Traditionalists and Boomers are approaching or passing retirement age. So, their needs for retirement savings will differ vastly from the younger generations just entering the workforce. Gen X and Gen Y realize the importance of saving for the future, but many don’t know much about their options. They want retirement savings plans that are easy to manage. To meet needs across the generations, it’s important to offer a variety of options for savings and retirement. But, also consider offering access to professional financial counsel on what plans fit each worker best for their stage in life.

Health & Wellness

Health benefits are a top priority for workers across the generations. The availability of paid health benefits can be a deciding factor in whether or not members from any generation will join or remain at your company. That’s why, despite the rising cost of healthcare, more companies are adding a variety of health and wellness programs each year to appeal to the needs of each generation. Some offer prenatal care, extended maternity leave, smoking cessation programs, health screening programs, and fitness incentives. Other popular options include health savings accounts and optional insurance such as vision, cancer, or chiropractic.

Work/Life Programs

Though Traditionalists and Boomers typically gravitate toward traditional work schedules, many are opting to use flexible work schedules as they approach retirement age. Flexibility is also top priority for both Gen X and Gen Y, who value work/life balance and family time. Flexible work programs may need to be flexible themselves to offer options that will appeal widely across your workforce. Many workplaces offer a range of schedule options, from telecommuting to flexible workweeks to job sharing to flextime.

Rewards

Every generation values being rewarded for their efforts. Exactly what incentives will appeal to each generation may vary by personal preference. Traditionalists and Boomers have demonstrated preference for traditional monetary rewards and promotions. Gen X and Gen Y typically prefer rewards such as time off, volunteering opportunities, and parenting incentives. But, they’re also eager to prove their capabilities, and many are motivated by training and development opportunities, as well as traditional promotions. So, offer a range of options to members of each generation because what motivates people varies.

Experts say that offering the most comprehensive pay, benefits, and rewards programs possible is one of your best tools for recruiting and retaining employees in a multigenerational workforce. It can be costly and time-intensive, but keep in mind that your workers are your most valuable resource, and you’ll quickly see that this is an investment that will pay off.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Networking is Notworking

Has this happened to you?

It’s Saturday. You’re running errands when you spot a disabled car on the side of the road, and a non-threatening person standing next to it.

Your first thought? “I should help this person.”

Your next conscious thought? “Boy, I really need to get to the grocery store!”

What happened here? Your first inclination was to help. But your immediate reaction to that was, “I don’t know what’s wrong with that car. I don’t know that person. If I stop, how long will I be there? I might have to take that person somewhere! How long will that take? I need to get to the grocery store!”

Your personal, perceived busyness kept you from going out of your way for another person.

Well, we’re all too busy. And my busyness takes precedence over your problem every time.

Whether you are trying to get customers or a job, word of mouth is a significant tool. Referrals are key to client growth, as they typically cost nothing, and are predisposed to buy. By the same token, getting help when you are looking for a new career or job will involve the help of others.

There are some problems people run into with this process, however. Over the next couple of months we’ll look at some of them.

The first is:

If you cause people to go out of their way they will not help you.

We are so busy that we have learned to limit not only what we do but what we see around us. It is said that in a day we are exposed to 3,000 ads. Why is this a surprise? We have learned to limit our notice of them. In doing so we also learn to limit access to ourselves. We hunker down and focus on our agendas. So, if you try to get me to go out of my way I won’t help you. I’m too busy.

Effective networking enables others to help without going out of their way. How is this done? Stay tuned.

This article is reprinted with permission of Mr. Bud Whitehouse, Director of Client Services, Career Management of Virginia.  He can be reached at 804-282-6466 or bwhitehouse@cmvacareers.com.
www.cmvacareers.com

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