How to Stay Out of Trouble and Out of Court

17 Jan How to Stay Out of Trouble and Out of Court

Before terminating an employee, consider these questions:

  • What expectation or policy was violated?
  • How was the employee aware of the policy or expectation?
  • Who explained the policy or expectation and when?
  • Did the employee understand the consequences of failing to meet expectations?
  • Was the employee given a chance to improve performance?
  • Was performance tracked and managed?
  • Prove it. In other words, what’s in the file?


Before disciplinary action is taken, HR and the Manager should consider:

  • Do federal or state employment laws apply?
  • What is the company’s policy, and is there a signed acknowledgment of policies in the employee’s file? (see questions above)
  • What is the company’s precedent for this situation, and could a deviation from precedent be justified?
  • Is the employee a member of a protected class, and could discrimination claims result?
  • Is the employee on a protected leave, such as Family Medical Leave, or out on worker’s comp?
  • Would the employment action be based on performance, and is it adequately documented in the employee’s file (coaching sessions and written warnings if applicable)?
  • Is there any history of personal conflict between the manager and employee?

There’s less liability when the action won’t violate employment law, the action is consistent with the written policies and past precedents, the expectations and instances of poor performance are well documented, and the employee has had the opportunity to improve but failed to take advantage of it.

Scott Mastley, SPHR, MBA, is the Vice President of Human Resources for Resource Alliance.
Scott is a consultant, not an attorney, so he shares his opinions, not legal advice, about increasing performance and limiting liability.