1. Hire carefully.
Yes, past employers generally are hesitant to disclose anything other than dates of employment and position held, but call references, use background check resources, or at a minimum, do an Internet search. In 60% of the cases I have defended, the first words out of the supervisor’s mouth have been: “I did not want to hire this person to begin with.” Trust those instincts.
2. Be clear about performance expectations.
Long, detailed job descriptions are standard these days, but can diffuse which job responsibilities are truly critical. When an employee is disciplined or discharged, and later sues, I often hear from the employee: “I had no idea that was really part of my job.” Clearer and shorter is better.
3. Keep performance evaluations honest, even if it hurts.
Many a lawsuit is born when an employee is discharged after glowing performance reviews, because the supervisor was not frank enough to discuss genuine performance issues.
4. Deal with bad job performance immediately.
Deferring disciplinary action or discharge does no one any good. The employee does not know he or she is falling below expectations, and the employer then faces this argument: “If this employee was so bad, why did it take the employer three years to fire her? Was that really the reason, or was it because she filed a workers’ compensation claim/took leave/blew the whistle?”
5. Document counseling or discipline discussions, do it at the time, and tell the employee you are doing it.
Juries believe documents created at the time the discussion occurred. If it is not documented, it did not happen.
6. Be clear about consequences for continued poor performance -- and mean it.
Employees not only need to be told if they are doing poorly, but they also need to understand what will happen if things don’t improve.
7. Make sure employment policies leave room for employer discretion.
While your company may have a progressive discipline policy, jumping steps sometimes will be necessary and justified.
8. Give discharged employees the reason for the discharge.
If the employee does not understand why he or she is being discharged, it can only lead to speculation that the real reason was an illegal one.
9. Give advanced notice to employees being laid off for reasons other than performance.
Even if the employer is not subject to various notification laws, this is just good practice. Watch the movie “Up in the Air.” Pay attention to the interviews with people who just lost their jobs through no fault of their own.
10. Do not be penny-wise in seeking help for difficult situations.
Sometimes a three-hour consult with an experienced attorney or human resources professional can save hundreds of hours of litigation.
This article was originally published as a special report in the Portland Business Journal on December 4, 2014.
