Ask Rita in HR: Should Murphy’s Law Be a Consideration in Making HR Decisions?

When is the right time to discipline or terminate an employee?

Dear Rita,

Our HR committee recently discussed how to deal with an employee who has demonstrated both performance problems and issues getting along with their colleagues. They have also been insubordinate when these issues were brought to their attention and were defiant in being told that things need to improve.

There has been documentation of all discussions with the employee about these issues as well as their refusal to respond positively or show any improvement.

Based on this, we made the decision to terminate this employee. We made this decision on a Friday; while there was much debate about when to implement this decision, those members of the committee who wanted to wait until Monday outnumbered those who wanted it done that day. The justification for the delay was that they didn’t want to ruin the employee’s weekend. Also, if terminated on Monday, the employee could go to the unemployment office right away and make a claim for benefits rather than wait.

On Monday with final pay and other termination documents in hand (as the designated person to terminate the employee), I saw the employee come in to work and asked them to meet me in a conference room in 15 minutes to discuss something.

The employee responded, “I wanted to talk to you, too — I want to make a formal complaint of discrimination and harassment against my supervisor.”

This was the first time the employee has made any mention of such a thing. Now what?

Signed,

No Good Deed Goes Unpunished!

Dear Unpunished,

You have just experienced the consequences that many other employers also face when they delay, wait, or postpone implementing a decision to discipline (or eventually terminate) an employee.

Common sense and good HR practice tell us that when you decide to discipline an employee, you base this decision on a set of known facts about the employee’s performance, behavior, and other background facts (which include risk factors).

For example, if the employee is subject to any protected status or engaged in any protected activity, those risk factors must be taken into account in the decision to discipline. That is, the degree of risk should inform the wisdom of going forward with a decision to discipline (or not).

However, if there are no such risk factors, then the performance and/or behavior problems serve as the primary facts that inform the decision to terminate (or discipline). Yet it is important to note that the background facts (including risk factors) can change at any time.

Therefore, it makes perfect sense, is good HR practice, and contains risk to implement the decision to discipline—especially termination—as soon as possible. If logistically possible, these actions should be implemented the same day the decision is made.

As you have seen, any delay allows the background facts (including risk factors) of the case to change randomly — perhaps even intentionally on the employee’s part. Any change in these background facts then affects the legality concerning any disciplinary action, especially termination.

Here are a few real-life situations that illustrate how properly based decisions to discipline might need to be reconsidered.

Pregnancy: A recently hired employee demonstrated an inability to understand the job duties and repeatedly made mistakes that put clients at risk. The decision to terminate was made; however, the supervisor was going on PTO for a week and wanted to be present at the termination, so the meeting with the employee was postponed for the following week. Before this meeting, the employee was told to come to the conference room “because we want to talk to you.” She replied, “I want to talk to you too—I’m pregnant.” Now, the employee is part of a protected class, making termination more difficult.

Injury: After consideration of well-supported and documented behavior problems by an employee, a decision was made to terminate an employee “after lunch.” When the time came and the employee was called to the second floor to meet with HR, the employee tripped on the stairs and broke his ankle. He went to the hospital instead of the meeting. Now, he can blame any problems on his injury, making it much more difficult to fire him in the foreseeable future.

Age: A recent hire for an IT service company was having a hard time grasping some of the more updated software that needed to be serviced. His lack of understanding led to a number of customer complaints, and a decision was made to terminate. Things got busy, and the termination was put on hold for 10 days. In that time, the employee celebrated his 40^th birthday. His colleagues in the unit he works in are all in their late 20s and early 30s. If he were to be fired now, it might seem as though he were being fired for his age, not his bad performance.

As these examples reveal, real world uncertainty exists. Unforeseeable events do happen and waiting to implement a clearly legitimate and business-related disciplinary action greatly increases the chance that conditions will change. If any conditions change, then the “things known” at the time the disciplinary action is implemented change, thereby increasing potential risk factors and, ultimately, threat of lawsuit.

When conditions change (like in the above situations), termination must often be further delayed so that HR can evaluate whether the original decision (termination) is worth the additional risk created by recent events. In many cases, proceeding with the contemplated termination is warranted.

However, HR must carefully weigh the potential risk to the agency of keeping the employee on staff against defending a potential wrongful termination claim. As such, avoiding risk often means delaying any action until a more detailed and documented process of discipline is undertaken. This path of (in)action reduces the risk the unanticipated factual situation could be alleged to be the “real” reason for termination.

As this breakdown makes clear, the choices are never easy. Most alternatives do not feel like the best path, which again speaks to the need for prompt action when disciplinary decisions have been made.

By the way, what do you say when an employee you are planning to fire tells you they just found out they are pregnant?

The only thing you can say — Congratulations!

Ask Rita in HR is provided as a forum for our readers to learn about and discuss current developments in human resource law. It is not intended to provide a legal opinion or specific legal advice. Please remember that Ask Rita’s answers are fact-specific and may be affected by state laws. Information regarding state law can typically be found through your state’s Department of Labor or Chamber of Commerce website. Should issues arise concerning a specific legal matter involving you or your nonprofit, you are encouraged to contact legal counsel or your D&O insurance carrier, which may provide employment advice as a service to its insured organizations.

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About the Author

Mike Bishop

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Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation.

In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.

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