Seven NFL head coaches were terminated on Black Monday, duly named because it is the Monday following the end of the regular season when coaches typically get the axe. The coaches sent packing and looking for their next job are: Andy Reid of Philadelphia, Lovie Smith of Chicago, Norv Turner of San Diego, Pat Shumur of Cleveland, Romeo Crennell of Kansas City, Chan Gailey of Buffalo and Ken Whisenhunt of Arizona. Several General Managers were also fired.
These terminations were no surprise and were without controversy. This was due to the fact that their teams’ performances did not reach reasonable objective standards – enough wins. Norv Turner, for example, had failed to reach the playoffs in the past three seasons. Gene Smith’s record with the Jaguars was 22-42 and his team went 2-14 in 2012, the worst season in franchise history.
Termination decisions, however, are not always so clear. Often, the decision is based on subjective and objective reasons. Other factors may make the decision more complex. For example, the employee to be terminated may be in a protected class; the employee may have engaged in protected activity (such as complaining about discrimination); there is little documentation to support the decision, or the employee is well liked.
There is no way to fully insulate an employer from being sued as a result of terminating an employee. Here are a few basic tips, however, that should be followed to reduce the likelihood of being sued.
- Make Sure The Termination Is Not A Surprise. If properly managed, no employee should ever be surprised by termination decision based on performance. Prior to termination, the employee should have been notified of performance problems, told what the employer’s expectations were as well as the consequences of what would happen if performance did not improve. Employees are more likely to accept a termination without challenge if they knew it was a possibility and believe that they were given a fair chance to succeed. Contrast this with the termination of Toronto Maple Leafs’ General Manager, Brian Burke, who never saw his termination coming and stated that “this one here was like a two-by-four upside the head to me.”
- Be Consistent With Discipline. The most obvious way to guard against a discrimination claim is to apply rules equally to all employees and to be consistent with discipline. The genesis of any discrimination claim is an employee’s belief of being treated differently.
- Properly Document Performance Issues. In order to terminate an employee, an employer should have good documentation that supports the decision. A lawsuit can be won or lost on documentation. Employee files should contain recent performance reviews, records from counseling sessions with the employees and any discipline or corrective measures taken leading up to the termination. For example, an employer will have a difficult time convincing a jury that an employee was properly terminated for poor performance if there is no documentation illustrating the performance problems.
- Avoid Using Email To Discuss Personnel Problems. Email is not an effective way to criticize or discipline an employee. It will likely anger the employee and initiate an ugly exchange. Emails can also be forwarded so there is little control over who receives it. In addition, emails are discoverable in litigation. Because emails are typically less artfully written than letters, they may not serve as great exhibits. Disciplinary matters should be discussed in person.
- Provide The Real Reason For The Termination. Always provide the real reason for the termination. Giving a phony reason for the termination, even if to avoid hurtful feelings, can be detrimental in any subsequent litigation.
- Treat Employees With Respect. Litigation often comes about when terminated employees feel they were disrespected. Being terminated is an emotional event. Be conscious of your comments and respond to requests for information on benefits, unemployment or other issues that may arise.
- Keep Termination Meetings Brief. Termination meetings should be short and to the point. If possible, the meetings should be conducted at the end of the day.
- Consider Providing Severance Pay In Exchange Of A Release. The surest way to obtain peace of mind and avoid a lawsuit stemming from a termination decision is to obtain a full release of claims from the employee. The release must be supported with some benefit to be enforceable. Therefore, an employer will have to provide money or some other benefit in exchange for the release.
Terminations are necessary and will always be a difficult challenge for an organization. With proper consideration and planning, however, terminations can be accomplished without creating unnecessary disruption and litigation.