Managing Non-Performers —Fioernza

Review all contracts and other writings. Where an employment or union contract exists, the employer’s right to discharge an employee is most likely encompassed within the “four corners” of that document.

But the analysis should not stop there. Offer letters, performance evaluations, e-mail and other communications should also be analyzed to determine whether the employer’s right to discharge has been limited.

For example, where an evaluation states “you have six months to correct these problems…”, an employer would be hard pressed to discharge an employee after two. Where a salesperson is given a quota of $500,000, an employer is on shaky ground discharging for performance if this threshold has been met.

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.

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