Allowing a disruptive or poor-performing employee to remain on staff will
only create a hindrance toward meeting business objectives. If handled improperly, however, giving notice of termination
can result in a wrongful discharge claim.
Prior to terminating an employee, it is
important to conduct a fair and comprehensive investigation.
“Terminations should occur only after
thorough investigation and in conjunction
with established principles and procedures
within the company,” says James Bradley,
an executive partner at Secrest Wardle.
Smart Business learned more from
Bradley about how companies can best
protect themselves from wrongful discharge claims and the importance of management setting a good example.
What are the most common types of wrongful
discharge claims?
Some of the more common wrongful discharge claims in Michigan are brought pursuant to the Elliot-Larsen Civil Rights Act.
These claims may allege constructive discharge based upon harassing conduct
associated with race, gender, age or national origin, but they may also be based upon
improper retaliatory discharge such as
whistleblower-type conduct, wherein employees are terminated for raising concerns with management about improper
conduct by other employees. Often they
will include allegations of both improper
conduct and wrongful discharge, and
claims brought under this act may also subject an offending party — and the employer — to the payment of not only damages
but also additional sanctions, such as attorney fees.
Other claims may be founded in alleged
violations of conduct outlined in employee
office manuals, such as smoking, taking
drugs or other activities banned pursuant
to established company policy.
How can companies protect themselves
against wrongful discharge claims?
First, have a well-documented company
policy in place that outlines employment expectations and job responsibilities as well
as unacceptable employee behavior. This
manual should be updated regularly, and
employees should be thoroughly trained on
what the policies are and how the policies
will be enforced.
Second, insert a signature page into the
employee manual that each employee
must sign. By signing this page and returning it to the personnel office prior to beginning work, the employee signifies not only
his or her understanding of what constitutes unacceptable behavior but also what
the ramifications will be for violation of
those policies.
Third, remember that every termination
of an employee is an invitation to a wrongful termination claim. Terminate each
employee with the expectation that a lawsuit could ensue. Disciplinary actions
should, in most cases, be progressive, well-documented and fully discussed with the
employee. Witnesses to the offending
behavior should be identified in the company personnel files, along with any tangible evidence of the violation. The penalty
imposed should also be outlined in the file,
along with reference to any prior conduct
of this nature.
How should a company communicate its
policies to employees?
In well-published, strictly enforced directives from the highest levels of the business. While it is important to have policies
against sexual and other forms of harassment well documented in employee manuals, it is equally important that they be
adhered to at all levels of management. In
many ways, businesses are like families. In
fact, statistics show that other than your
family, you will spend more time at work
than in any other social setting.
Why is it so important for management to set
the tone in regards to appropriate behavior?
First, because it is the right thing to do,
and secondly, because it can save your
business the needless loss of productivity
and money spent defending litigation.
Businesses do not exist in a vacuum. They
act through their employees. Likewise,
their exposure for the acts of their employees depends in many cases upon how fast
and in what way(s) management reacts to
the behavioral issues of its employees. If
management is accommodating of bad
behavior, or worse yet, complicit in the
acts, it may expose itself to additional liability to a claimant for allowing injurious
behavior to continue. Damages in harassment cases are often a function of not only
what the offensive behavior was but how
long the harassment was allowed to continue and what steps management took to
abrogate the offending behavior.
How should a harassment complaint be handled?
With compassion, understanding and seriousness. Always remember that this issue is
important to the claimant who is feeling
wronged in some way. By taking the allegations seriously and investigating the allegations thoroughly, businesses demonstrate to
the complainant and their other employees
that harassment is a serious issue within the
company and that it will not be tolerated.
JAMES BRADLEY is an executive partner at Secrest Wardle. Reach him at (517) 886-9024 or [email protected].