Jun 14, 2011
by TAMARA RUSSELL of Barran Liebman LLP
Many employers understandably dislike terminating their employees’ employment. The termination meeting can be awkward and uncomfortable. Tempers may rise, or tears may fall. But the worse thing an employer can do during an already difficult situation is make things worse; specifically, when the employer decides not to specify a reason for the termination, or makes a comment like, “This isn’t a good fit, period.”
An employer sets itself up for a contentious lawsuit whenever it decides to not give a termination reason to a departing employee. In this litigious era, when few gatekeepers exist to screen out the frivolous lawsuits, and few tools exist to deter underemployed lawyers from filing marginally credible (or simply frivolous) lawsuits against employers, employers should expect that any termination could result in a lawsuit or a claim for damages. If the employer hasn’t thoroughly planned that termination, which includes articulating a reason for the termination, the employer may be left without an adequate defense or an undesirable defense against a claim of discrimination or retaliation.
An employer’s best defense to a claim of discrimination or retaliation is a well-documented, thoughtful basis for a termination, one that is clearly expressed and explained to the departing employee.
The following are some of the primary reasons I have heard from clients about why they won’t give a termination reason, and an explanation as to why such reasons will not be helpful to an employer if they are challenged.
#1 – I don’t have to – we’re an at-will state. It is true that in an at-will state like Oregon, either the employee or the employer can terminate the employment relationship for any reason as long as it is not unlawful (or no reason at all). The law is not so simple in application, however. This is because employers, in defending against claims of discrimination or retaliation, must state a reason for the termination whenever the claim is reviewed by the Oregon Bureau of Labor and Industries/Equal Employment Opportunity Commission or a court/jury. If the real reason for a termination is neither articulated nor documented, the employer appears to these “outsiders” as though it is attempting to either cover up its actions or create an after-the-fact reason for the termination, neither of which is easy to defend. More importantly, the employer’s choice to say nothing may make little sense to a jury that is likely already skeptical of employers: If the real reason could have been articulated, why not just say it? Juror skepticism, and juror concern about whether an employee was treated fairly at the time of his termination, can seriously damage an employer’s ability to convince a jury of its legitimate, non-discriminatory reason for termination.
#2 – I don’t have to – the employee had not completed the probationary period of employment Employers mistakenly believe that having a 90-day, probationary or introductory period of employment provides them with an extra layer of protection against discrimination and retaliation claims. But anti-discrimination and anti-retaliation laws still apply during the probationary period, and for the reasons stated above, the employer must still state a reason as to why the employment relationship ended. If the employer has concluded that the employee shouldn’t work past the probationary period of employment, the employer should point to the underlying reason for having a probationary period of employment as the termination basis: The employee failed to meet the employer’s expectations (and then state what those expectations were). Simply stating the employee didn’t finish the probationary period is too vague, and too susceptible to interpretations that could give rise to discrimination claims.
#3 – Whatever reason I give will be torn apart during litigation, anyway The employer’s reason for a termination could very well get “torn apart” during litigation, regardless of whether it is articulated and/or documented. But if the employer has a documented, articulated reason, it is unlikely that the employer’s reason will, in fact, get “torn apart.” Besides, if an employer can’t back up the reason for a termination or explain why the termination occurred, the employer probably should not have terminated that employee in the first place.
#4 – I don’t want to hurt the employee’s feelings Employers actually do a disservice to a departing employee when they do not articulate a reason, even if the reason is difficult to discuss. Employees leaving an employment relationship with uncertainty as to why the relationship ended are more likely to bring claims or lawsuits than those who have been given a reason. More importantly, a jury will likely be skeptical of such a reason.
The rules described above work both ways: If an employer gives a reason for a termination, the employer should make sure it’s the only reason. Sometimes employers try to add additional reasons for a termination after one reason has been articulated to the employee. This is a mistake, too. Then the employer is on the record for having given the employee one reason, the Department of Employment another reason, and then in a deposition a third reason. Again, when it’s time to terminate an employee, do it right, say it once, and articulate the “real” reason for doing so.