Surprises are for birthdays (and other tips to avoid wrongful termination claims)

Imagine the following scenario: You have been a food and beverage sales representative in the same company for the past six years. You have not done their share in the last three, but neither has half of his team sales. You went for six months a year and a half ago due to a severe inner ear disorder that was removed completely balance. His health is good, but now when tired, you tend to lean slightly to the left.

You and your boss never have been, he thinks you're arrogant and thinks it's stupid. Three months ago, was so incensed by what they believed was an ignorant statement made during a sales call that was over his head.

Big mistake his boss and play golf together and the two of them had quite a conversation about his "insubordination." Since then, you think your boss has been gunning for you. He made several sarcastic comments about their sales techniques and, last week, when he realized his balance was slightly off, joked sales group was not sure if they were tired or had one too many cocktails at lunch. "

Today, when reached at his office, SURPRISE! You met a human resources professional who tells you that you have been fired for "performance reasons." Wrongful discharge? Disability Discrimination? This employee certainly thought so and in real life, filed a lawsuit claiming both. In this article we will look at legal issues in the unfair dismissal the psychological impact of being fired, and staying safe in the line of fire.

You have to write it all wrong

In many states, unless an employee is hired by a specific amount of time the employee is an "at will" employees, and may be dismissed for any reason or no reason at all – but not a bad reason, such as discrimination. We also can not be dismissed in a way that causes personal injury or without good cause if he is under contract. In essence, then, illegal discharge cases restrict the right of the employer to dismiss an employee at will.

A number of courts recognize a claim for termination wrongful termination in violation of public policy well established, including dismissal discriminatory and retaliatory dismissal. Discriminatory discharge claims are increasing, in fact, represent almost exclusively for the 40% increase in applications for unfair dismissal, since 1992. Other examples of policy demands dismissal in retaliation public participation of workers alleging they were fired for "whistleblowing" claims submission of workers comp, cooperating in an investigation of a government employer or comply with a legal duty as serving on a jury or testifying under subpoena as a witness.

The most common form of wrongful termination lawsuits alleging that the employer breached a contract, whether formal or informal, no termination of employment except for "good cause ". If an employer expressly or implicitly agree, orally or in writing, to hire an employee for a specified period, to discharge in just cause, or to comply with progressive disciplinary procedures, that an agreement can be determined by a court to be an applicable employment contract.

The courts have allowed individual employees to sue for breach of contract, simply on the basis of informal oral promises by administrators or others in positions of authority. While no promises were made, some courts have determined that there was an implied contract because:

• The language used in the manuals that state employees be given an initial trial period

• the language in disciplinary policies that states employees will be discharged only for certain crimes

• Language in progress disciplinary policy states employees will receive opportunities to improve performance

• The language in the manuals or documents that justice account statements or special attention to employees because of longevity or seniority

• History of an employee of work that reflects the merit raises

• good performance evaluations, praise and promotions

• the employer's practice of discharging employees only for good cause

Finally, claims of unfair dismissal can occur when the employee argues that the download was in intentionally degrading or humiliating, businessman falsely accused of misconduct of the employee (or make false statements or damaging for their co-workers), and other various harmful behaviors.

Therefore, an employee who wishes to sue for unfair dismissal must demonstrate,

1) that his employment contract, either express or implied, included a promise not to be dismissed without cause (the cases of contract), or

2) that his employer fired him for a reason that violates a fundamental policy expressed in state statutes or the constitution (Case of public policies), including laws against unlawful discrimination (discrimination cases), or

3) that the employer committed an illegal act, such as defamation, invasion of privacy or intentional infliction of emotional distress (independent tort cases).

Clues to avoid wrongful termination beginning with a look at what causes it. Common themes in the treatment above are employees fairly, consistently, humanely and honestly.

Nobody likes rejection, but some types are worse than others

Think romantic breaks that have been especially difficult to overcome. Odds are, the break with at least one these criteria:

1) the rejection was a complete surprise

2) the person had been threatening to end the relationship for months (without monitoring and consolidation), and finally

3) You have mixed signals this person and then were thrown sharply

4) the person has made comments derogatory about his character, etc.

The same is true for involuntary terminations. No employee should be surprised by an ending because s / he should having received verbal and written warnings with a performance improvement plan clearly documented, including a deadline. No employee with a pattern of good evaluations Suddenly performance should be dismissed (unless it is a felony conduct). And termination meeting should focus on specific reasons for termination and never be diverted to insults or derogatory comments of character.

A dismissal or resignation in poor conditions can have adverse psychological effects interested in shame (the shame and anger) and the rest of the staff (rumors, resentment and fear). The former can be reduced by the courtesy and consideration, consistent with the treatment given to other employees laid off, and if possible, generous compensation arrangements. legal claims may be reduced by that, especially if accompanied by policies fair and consistent management of performance and procedures.

Farewell ways on good terms

Tips to avoid wrongful claims start of the opening in the recruitment process. Supervisors and managers must know how to offer a job without simultaneously an employment contract. employment handbooks and job applications should contain an "at will" statement.

So it's a management issue performance by:

1. Providing notice in writing from all the problems with job performance, and give the employee a fixed period of time to correct the problems.

2. Keep a careful record of job performance each employee.

3. Keep specific detailed records, employee performance and reviews. For example, note: "We often leaves early," or "The work has many errors." Note the date the employee left early (and early that s / he left), or describe examples of work full of errors.

4. Include in the summary file written warnings given to employees about their performance problems. Use a documented system of progressive discipline, verbal warnings escalating warnings by writing to the suspension of termination.

5. Put a uniform discipline. Do not overlook the problems of an employee to another discipline.

6. Have an employment policy book that lists examples of crimes that lead to a rupture.

7. Never make the decision to fire someone out on impulse. If the behavior of an employee pushes a manager to the point of boiling, give the employee the rest of the day off and ask the manager to go back in his office and cool. If the employee's behavior is seriously inadequate, since he or she in immediate leave pending an investigation.

8. Run ends beyond an attorney for s / he can examine the history of workers and their membership of any potentially protected group as well as past practices of the company and the adequacy of the documentation.

Lessons from the firing line

Why do you think our food and beverage sales representative was fired? Poor performance? Disability Discrimination? Nor, in my opinion. I think our sales rep was fired by the clash of personalities long data he had with his supervisor, triggering event that is his decision to go above the head of his supervisor. However, the way he handled his manager employee – Make inappropriate comments, firing the employee suddenly and without verbal or written warnings, not disciplining other employees for breach of its quota – almost pleaded for a wrongful termination claim.

The bad news is that unfair dismissal awards have increased dramatically in the last ten years. The good news is that many of the steps that help companies to avoid unfair dismissal also help companies recruit and retain the best workers. And that's a win-win for everyone.

About the Author

Joni E. Johnston, Psy.D. is President and CEO of WorkRelationships (
http://www.workrelationships.com
), a cutting edge online and inhouse employee compliance/relations training and consulting firm.

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