BFV Perspectives, Sports Fans Guide 2 HR, | Jan 30, 2024

The Most Important Termination Rule:  A Tip from NFL’s “Black Monday”

Once again several NFL head coach terminations began on “Black Monday.” This is the day following the end of the regular professional football season. None of these terminations of employment were a surprise. NFL head coaches understand that winning a lot of football games is a job expectation. And losing too many games is a terminable offense.

Outside of sports, the criteria used by employers to evaluate job performance is seldom as objective as wins v. losses. Previous blog posts discussed NFL’s Black Monday, offering valuable tips on handling terminations and using checklists for legal compliance.

No doubt, there are many lessons to be learned from NFL coaching terminations. There is one principle, however, that is paramount:

A termination based on performance should never be a surprise.

Why is this principle so important? There are two major reasons:

  1. Employees deserve to be treated fairly; and
  2. Discrimination lawsuits often stem from disgruntled individuals who feel blindsided by a wrongful termination. EEOC charges often claim discrimination, citing lack of communication about performance issues before termination as evidence of unlawful bias.
Avoid the blindside

Communication between supervisors and employees is a key element to improving management performance. Employees should know their role and what is expected of them. Equally important, supervisors must actively monitor and manage performance. Employees must consistently understand if they meet expectations and the consequences if they fall short, ensuring accountability and clarity.

Notifying an employee of a performance issue and offering a chance to improve reduces the likelihood of feeling blindsided. This can also reduce the likelihood of alleged discrimination. Meanwhile, providing notice strengthens the employer’s defense against discrimination claims.

Coaching tips for terminations
  1. Communicate. After every football game, coaches review game film with the team. They break down the plays and identify what was good and what needs improvement. This process provides immediate feedback, ensures everyone is on the same page and sets expectations going forward. Employers can similarly benefit from communicating regularly about performance.

Annual performance reviews are important, but they should not be the first time an employee learns that there is a performance problem. It’s important to provide timely feedback, especially when a problem is serious and may lead to termination if not corrected.

  1. Be honest. Regular communication is important and must be honest. Inflating performance evaluations and avoiding discussions about performance problems do not help the employee and make terminations riskier. Conversations with employees about performance problems can be awkward and uncomfortable. Nonetheless, they must occur. Managers should seek help from human resources if they are unsure how to handle a particular problem.
  2. Document counseling. If a discrimination claim is asserted, the employer must prove a legitimate, nondiscriminatory reason. The existence of documentation showing that the employer notified the terminated employee about the performance problem can meet this burden. On the other hand, lack of documentation weakens a defense and increases liability exposure. Examples of documentation include performance evaluations, written warnings, performance improvement plans, and notes from counseling sessions. After counseling, have the employee acknowledge the discussion and expectations in writing.

Providing timely and constructive feedback on employee performance is a managerial responsibility. By fostering a culture of open communication and regular performance evaluations, employers can address concerns, set clear expectations, and help employees improve their performance. Taking such proactive steps also avoids employee blindsiding and lessens the risk of litigation.

As always, please let me know if I can help with a terminated employee matter, an employment contract review or any other employment matters.

BFV Perspectives, Sports Fans Guide 2 HR, | Jan 30, 2024
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.