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Managing Non-Performers —Fioernza

November 2006

Are you discharging an employee in a “protected class?” Wrongful discharge cases generally hinge on an employee proving that: 1) the reason for the discharge offered by the employer is false; and 2) the action itself violates a law that protects the employee from discharge. To address this first issue, employers must realize that any written document which appears inconsistent with the discharge decision can be fatal to defending the employer’s actions in court.

Honest Evaluations

Let’s say, for example, that you have an employee whose prior annual evaluations indicate that her job performance is “satisfactory,” even though it was not. This is not uncommon, since many managers are reluctant to rate overall performance as “unsatisfactory.”

Where such an employee is later fired due to poor performance, those annual evaluations will be used as evidence to “prove” that the employer’s reason for firing the employee is false, and that illegal discrimination is the “real” reason.

Accordingly, all documentation related to the employee should be analyzed by the employer and its attorney prior to discharge. Where contradicting documentation exists, employment lawyers will often counsel a client to postpone a discharge. We will tell the client to try to rehabilitate the employee’s performance and carefully document those rehabilitation efforts. If they work, the problem is solved. If not, the client has time to document the worker’s performance deficiencies to offset the earlier contradictory documentation.

Employers must also understand the concept of “protected classes.” The National Labor Relations Act of 1935 was the first major exception to the employment-at-will rule and created this concept of “protected classes.” In essence, this Act provides that employees cannot be fired because of their union-related activities. In other words, where an employee engages in union organizing activities, for example, the employee belongs to a class of individuals protected from discharge under the law.

Today, there are many other classes. They prohibit discrimination on the basis of an employee’s race, color, gender, religion or national origin. Therefore, any termination based on these factors is a violation of law. Numerous other federal and state laws have since been enacted that provide similar discharge protection on the basis of an employee’s age, disability and sexual orientation, as well as other non-discriminatory bases.

For example, if your company is covered by the Family and Medical Leave Act, the discharge of an eligible employee for taking a qualified leave will be overturned regardless of employer justification. Likewise, failing to return an employee to work following a leave protected by the Uniformed Services Employment and Reemployment Rights Act will be reversed.

Thus, when confronted with discharge decisions, employers/ managers must bear in mind this concept of protected classes. A discharged employee in a protected class can start a wrongful discharge claim merely by establishing that they are a member of a protected class and suffered an adverse employment action. It then becomes the employer’s obligation to prove a legitimate non-discriminatory reason (e.g., job performance deficiencies, misconduct, lack of qualifications, etc.) for its action. It is virtually impossible to “re-construct” this reasoning after the fact.

The key is to recognize before a discharge decision is finalized that where a protected class is involved, a heightened duty of proof exists should the matter end up in court.

So, without obtaining an employment law degree, how does an employer make reasonably safe discharge decisions?

The Manager’s Role. Documentation is critical. It is incumbent on the employer’s managers to document all employment decisions in a manner designed to defend potential claims of wrongful discharge. The manager can substantially limit the company’s potential liability by remembering that all discharge decisions will ultimately be judged on a standard of job- relatedness. Accordingly, the manager must be able to demonstrate with clear documentation that the action was taken because of a true job requirement.

Progressive Discipline. With the exception of certain “summary” offenses that warrant immediate dismissal (e.g., workplace violence, theft, substance abuse on the job, etc.), creating a “record that stands up” requires a personnel file which includes successive levels of “discipline.” When reviewed as a whole, the file should lead to the conclusion that the discharge was the employer’s clear right, based not on “employment-at-will”, but rather on the basis of unacceptable employee conduct. Generally speaking, a strong personnel file will include evidence of oral and written warnings, poor evaluations, rehabilitation efforts, and possibly a suspension, prior to the discharge.

Evaluating Company Discipline. Whether operating in a union or non-union environment, certain general principles will help the employer withstand a challenge to its decision to impose discipline. The following considerations should be addressed before a final decision regarding the discharge of an employee is reached:

It should be clear that the employee was aware that his or her conduct violated company standards or rules. If a written rule was involved, the rule should be posted or distributed to the employees and related to a reasonable business interest.

The standard used to measure the employee’s performance conforms to an acceptable industry practice. It is not arbitrary or unreasonable.

The employer should be able to establish that the standard has been consistently applied with regard to all employees. In other words, no employee should be “singled out.”

The employee should have received the same training in meeting the company standard that other employees received.

The employer should be able to establish that the employee was aware that failure to meet the company standard would mean loss of his or her job. A warning notice which tells the employee that this is his/her “last chance” to salvage his/her employment is a good way of proving this.

Progressive discipline should be taken in all cases, except the most serious summary offenses.

Does the punishment fit the crime? The employer should consider the employee’s past record, length of service and what the employer’s past practice has been.

Discharge should never be “on the spot.” Suspend first, investigate further, then decide.

Considering these matters prior to any decision can help minimize the legal risks associated with this highly regulated area of employment law. It may not be as quick as ripping off a bandage but, in the long run, it can help eliminate the sting of employment litigation. PI

—Nicholas Fiorenza

About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and longtime association counsel to the Printing and Imaging Association of New York State and its members. He is also president of Delacroix Consulting Group, the human resources consulting component of the law firm. For more information, visit




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