CHAPTER TWO: Making a Case for Discharge Michael D. Homans, Esquire Flaster/Greenburg P.C. Philadelphia, PAMaking a Case for D scharge No matter how diligent an employer is in the hiring process, it will inevitably have to discipline or terminate some employees due to poor performance or misconduct, ‘This section sets forth the best practices —leamed from human resources, litigation and the law ~ for disciplining and keeping track of employee performance and conduct. If theee Steps are followed, the employer will be well-positioned to analyze and execute a termination decision, should that become necessary, Following the steps outlined here will (1) create a solid paper trail ofthe performance issues and the employer's steps to address those issues; (2) clarify the decision-making proses, Emphasizing legitimate business reasons and avoiding legally suspect considerations: (3) make jhe communication of the termination decision easier and less surprising tothe employee, thus befping to avoid litigation; and (4) aid the employer in avoiding liability, should the employee sue anyway, despite the best-laid plans and execution, a, Documenting misconduct and poor performance Document, document, document” is the resounding mantra in employment discipline and discharge. There is no substitute for a well-documented record when it comes time to discharge an employee. ‘The employer that has no documentation greatly increases the risk of “he-suid, she-said” credibility batle in court that can be resolved only by an unpredictable jury. juries and judges seem to place much higher value and credibility on contemporaneous, documented performance issues, versus manager testimony about it years later. ‘The practice of documentation also has the benefit as with written contracts ~ of forcing those involved ta {ake the time to think about what they are doing and reduce it to writing ina way that is rational Employment counsel serve their clients well by ensuring that management is trained about the proper way to create such documentation - in effect, creating evidence in advance that Tanai? an employer win its case, hands down. Of course, the converse is true -- an employer {hat creates a sloppy, false or inconsistent documentary record can provide a plaintiff withthe “keys to the kingdom” of a litigation victory. The first step in properly documenting poor performance and misconduct is to have an employee handbook or policy manual that sets forth ex; employer also may have department-specific standards order before proceeding to specific tips on documenting misconduct and performance First, all employee handbooks and policies should include the following: {clear and prominent disclaimer that (1) the employee manual is not a contract; (2) that all employment is “at will” (defining same) unless otherwise provided in a written sgreement signed by the employee and an appropriate officer of the employer; and (3) ‘hat the employer reserves the right to change, amend or revoke its policies at any time -39-for any reason. See, e.g., Woolley v. Hoffimann-LaRoche, Inc., 99 N.J. 284, modified, 101 NJ. 10 (1985) (holding that in appropriate circumstances, representations made in employee handbooks are enforceable under contract principles, but that a clear and prominent disclaimer is sufficient to void any claim that a contract has been created). To be sufficiently conspicuous, the disclaimer should be placed at the front of the employee handbook, and should be boldfaced and/or in ALL CAPITAL LETTERS, with an appropriate heading. An “acknowledgement of receipt” signed by the employee upon hire, when the handbook is provided to him or her, and subsequent documentation of updates (at least annually) of the handbook. This will be useful to show the employee had been informed of the employer’s rules and policies. A statement of the types of unsatisfactory performance and misconduct! that can lead to discipline, up to and including termination. (See sample policy, attached as Exhibit A.) This list is not the same for every employer and should be a combination of both universal reasons for termination (e.g,, embezzlement or theft, misteporting of time worked, dishonesty, breach of confidentiality, fighting at work, etc.) and reasons tailored to that workforce. The employer should make clear that the list is not comprehensive and provides examples only, and that other reasons, not stated, also may be cause for discipline and termination. Specific items to include a particular employer’s handbook can be developed through discussion with responsible managers of the employer, to censure that recurring or special reasons for termination are covered. Many employers choose to include specific point systems or formulas for discipline or termination based on absenteeism and tardiness, and such an objective system is recommended (so long as it is enforced consistently and fairly and includes exceptions for legally protected absences, such as those involving Family and Medical Leave Act leave, disability-related absences and jury duty). (See sample policy, attached as Exhibit B) ' These two concepts -- unsatisfactory performance and misconduct -- should not be confused. In general, discipline issues will fall into one category or the other. Misconduct usually involves intentional or reckless violation of an employer's rules or directives, and can warrant termination afier one episode. Misappropriation of company resources, dishonesty of any type, fighting at work, insubordination and sexual harassment are typical forms of misconduct. Employers generally have significant leeway to terminate an employee for misconduct, without any prior ‘warning or misconduct, so long as similar misconduct has not been tolerated in others. This is so because a single episode of misconduct often cannot be cured and may violate the necessary telationship of trust between the employer and the employee. Unsatisfactory performance, on the other hand, typically involves a more chronic and less willful set of circumstances, such as tardiness, lack of attention to detail in work, failure to meet established productivity goals, etc. In general, unsatisfactory performance -- because it is not as egregious or willful as misconduct, and is capable of being corrected -- leads to escalating communications and discipline before termination. -40-