Human Resources & Workplaces

In a 2-1 ruling on February 4, 2019, the Second Appellate District of the California Court of Appeals expanded requirements for reporting time pay by ruling that a California employer would owe reporting time pay if it requires an employee to call in to confirm a scheduled on-call shift, even when the employee does not actually report for work.

Like many retailers, Tilly’s, Inc. scheduled its retail employees for both regular and on-call shifts.   For on-call shifts, Tilly’s required employees to call exactly two hours before the start of the shift to confirm whether they were to report for work or not. If the on-call shift was scheduled on or before 10:00 a.m., employees had to call the night before at 9:00 p.m. Tilly’s instructed employees to consider on-call shifts “a definite thing” until they were told not to report. If employees called late, failed to call, or refused to work on-call shifts, they were subject to formal discipline, which could include termination. Employees were not compensated for on-call shifts unless they were required to physically report for work.

Skylar Ward, a former Tilly’s retail employee, brought a putative class action, alleging that Tilly’s failed to provide reporting time pay for on-call shifts pursuant to California’s Industrial Welfare Commission (IWC) Wage Order No. 7. Specifically, Wage Order No. 7 requires payment of reporting time pay ranging from two to four hours’ wages if (a) an employee is required to “report for work and does report,” but is not put to work or works less than half of his or her usual or scheduled day’s work, or (b) an employee is required to report for work a second time in a workday, but works less than two hours in the second reporting. The phrase, “report for work,” is not defined in Wage Order No. 7, and for the past 75 years no further definition was needed; California employers provided reporting time pay only when an employee actually did physically “report for work.” As such, the trial court agreed with Tilly’s and dismissed the case, on the basis that merely calling in to confirm a shift, without physically reporting, does not constitute “report[ing] for work” to trigger reporting time pay. Ward appealed. (Ward v. Tilly’s Inc., No. B280151, 2019 WL 421743 (Cal. Ct. App. Feb. 4, 2019).)

The Court of Appeals reversed the trial court’s order, ruling that Tilly’s alleged failure to provide reporting time pay to employees who called in to confirm on-call shifts would violate Wage Order No. 7. The Court emphasized that Tilly’s on-call policies in particular, which required employees to call exactly two hours prior to the start of the on-call shift and imposed strict discipline for failing to timely call, yielded an imbalanced benefit to Tilly’s at the expense of the extensive burdens placed on its employees. For example, Tilly’s on-call shifts prevented its employees from taking other jobs, pursuing an education, caring for loved ones, committing to social plans, or otherwise enjoying off-duty recreational time simply because they had to be available to confirm an on-call shift, for which they may not even be called in (or compensated).

The Court first reasoned that the phrase “report for work” is ambiguous enough that the Court needed to consider the legislative history of the Wage Orders. The Court then cited the Wage Orders’ purpose of protecting employees and broadly interpreted the phrase, “report for work,” to include more than just physical presence in the workplace. Assuming that the IWC had been presented with the issue of telephonic call-in requirements when the Wage Orders were created, the Court concluded that the IWC would have deemed that Tilly’s on-call practices triggered reporting time pay because they “have much in common with the specific abuse the IWC sought to combat by enacting a reporting time pay requirement.”

The Court also appealed to the California Supreme Court’s 2016 ruling in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 263, to emphasize the notion that off-duty time is not truly off-duty “if an employer limits the kinds of activities employees can engage in during off-duty time.” While the facts in Augustus and Ward are distinguishable, these rulings suggest a trend by California courts in treating any time that employees remain ready or on-call as compensable regardless of whether they are physically called on to work.

Although the holding in Ward concluded that Tilly’s fact-specific, on-call policies triggered reporting time pay, it is still unclear how this particular holding will apply to on-call policies and procedures in other factual circumstances. For example, the Court did not allude to an acceptable timeframe in which employees can call in to avoid reporting time pay requirements, nor did the Court address retroactive application of its holding. Also, the ruling may be extended beyond the retail industry to those industries and occupations covered by other Wage Orders containing the same language and requirements for reporting time pay, such as the manufacturing, personal services, housekeeping, and transportation industries, and agricultural and household occupations. As a result, California employers in each of these industries and occupations should carefully consider the result in Ward and be mindful of the legal trend to treat on-call time as compensable. Employers should promptly assess their scheduling and on-call policies in comparison to those in Ward to ensure proper compensation and compliance.

Valentine’s Day is right around the corner, what better way to celebrate than to examine the pitfalls of office romances? The “Me Too” era is still in full swing, and it is subjecting employers to more scrutiny than ever. Have you considered how to best handle office romances between employees before Cupid’s arrow meets its mark?

There are several ways that a workplace romance can expose an employer to legal liability. The relationship can turn sour, making things uncomfortable for one or both parties going forward. Allegations of sexual harassment may arise if either party is dissatisfied with what happened or engages in harassing or stalking behavior after the breakup. If a supervisor is involved, the organization may well be held liable based on that management role.

Even if the relationship runs smoothly, employers still face legal risks: co-workers may bring allegations of favoritism or unfair treatment because of the relationship. Courts have generally disfavored these so-called “paramour preference” claims (because the disparate treatment is premised not on the employee’s gender but rather on a romantic relationship between the employer’s decision-maker and the person treated preferentially – in other words, a preference for one’s lover results in both male and female employees being at a disadvantage, so there is no sex-based discrimination). Nevertheless, defending against these claims is time-consuming and expensive, and even if there is never a lawsuit, if other employees feel that they are being treated unfairly the relationship is likely to have a negative effect on office morale.

So, what is an employer to do? The story of Brian Krzanich, the CEO of Intel until his resignation in June 2018, is an interesting illustration. When Intel discovered that he had violated the company’s prohibition against managers having sexual and romantic relationships with direct and indirect reports, he was obliged to leave the company within a matter of a few days. Intel was praised for its handling of the situation and avoiding a “Me Too” fallout, but the situation demonstrates that swift and decisive action is often necessary in today’s climate. Intel’s policy governing workplace romances that was put in place in 2011 – and the Company’s following it without fail or delay – made this situation easier to navigate (albeit not for Mr. Krzanich).

The Intel strategy of expressly prohibiting such relationships is one way employers can help to protect themselves against the risks inherent in workplace romances. That prohibition focused solely on relationships with direct or indirect subordinates, which is likely more realistic than a blanket prohibition. But any useful policy must give the employer a framework by which to navigate these issues.

Another alternative is a policy discouraging dating between employees and requiring disclosure of such relationships to the employer. Requiring disclosure gives the employer the opportunity to protect itself up-front and may reassure other employees that the company is working to prevent harassment, favoritism, or retaliation because of personal relationships.

Employers who require disclosure of romantic relationships also may utilize a tool sometimes known as a “love contract.” These documents provide written confirmation that the employees’ relationship is voluntary and that both parties understand the company’s policies forbidding harassment and know how to report and address any work-related problems that may arise. A love contract may help an employer defend against potential claims by showing that the employer used reasonable care to prevent any harassment and that the employee had and was made aware of the avenues available through the company to try to prevent and avoid any harm.

While companies may prefer to prevent intimate relationships from ever arising between their employees, they are likely to happen anyway. By their very nature, interoffice romances are ripe with controversy and must be managed carefully, both for legal and business reasons. By implementing practical policies and developing an action plan with their counsel, a savvy employer can still come out smelling like a rose.

Do you monitor your employees using technology?  Would you consider making them wear wristbands or other devices capturing their every move?

This spring, news spread that Amazon had been granted two patents for a new wristband that appeared to be designed to do just that for its warehouse and fulfillment staff.  The patents indicated that the wristbands would track workers’ hand movements as orders were filled and provide “haptic” feedback through vibrations to guide workers to the correct items and shelves.  Although the company later released a statement indicating that the devices were intended only to be used as a hands-free, more efficient version of the handheld scanning devices commonly used by warehouse staff, the technology raised concerns among commentators that information gleaned from the devices would instead be used to monitor workers’ every move and inefficiency – even bathroom breaks.  Amazon isn’t alone.  A small technology company in Wisconsin, for instance, recently offered employees an opportunity to have microchips implanted under their skin as a replacement for RFID badge swipes at protected doorways and in the company cafeteria—and the majority of employees unhesitatingly agreed.

The above examples may seem far-fetched in the average workplace, but employers have always sought to monitor and improve their employees’ productivity, work habits, and communications.  Today, it’s not uncommon for employers to surveil their employees through technology in a variety of ways as a matter of course, including by using GPS tracking on employer-owned vehicles, recording telephone conversations with customers, scanning emails sent from employer-owned devices, or reviewing job applicants’ social media profiles.  But is it always a good idea?

Generally, employees have little expectation of privacy while on company grounds or using company equipment, including company computers or vehicles, so often, monitoring (with proper notice, as required) is not especially problematic.  Plus, technology has great benefits for employers, including in improving productivity and efficiency.  But it’s worth a few moments to consider how technology’s role in society and growing presence in the workplace implicates employee privacy concerns, and what the consequences can be for going too far.

So that you are prepared before the next big tech development hits your office, here are a few things to consider when weighing how your company should approach and balance surveillance and employee privacy concerns:

  • Consider the types of information and technology you intend to use. Different requirements may be applicable to certain types of information (social media sites versus credit reports from background checks, for example), and some states and local governments have begun proposing and passing legislation affecting surveillance of private electronic information that may apply, in some cases, to private employers.
  • Think about the implications of having and storing electronic data about your workers. What happens (and what are the practical and legal risks) if this data is accessed without authorization (and how should you respond if it is), and will you have a policy for responding to third-party requests for this type of information?
  • Finally, stay faithful to your workplace’s culture. While some monitoring can be a great tool to increase efficiency, too much (especially without prior notice and proper explanations) can foster distrust among employees.

This is a constantly evolving area of the law, and best practices can and should be tailored to your individual workplace. For more information and tips on recent legal developments in this area, reach out to your favorite Troutman Sanders employment attorney.

With the continued rise of the #MeToo movement, New York has taken the reins as one of the leaders in combating sexual harassment in the workplace.  All employers who have employees located in New York state must now provide sexual harassment training to all employees at least once a year.  New York joins California, Connecticut, Delaware, and Maine as states requiring sexual harassment training.  This requirement applies to employers of all sizes, and employers must train all employees (not just supervisors).

In addition to this new state requirement, New York City has enacted a law called the “Stop Sexual Harassment in NYC Act,” which goes into effect on April 1, 2019.  This law also requires sexual harassment training, but mandates that certain content be addressed.  The new law goes beyond what any previous sexual harassment training laws require by requiring employers to:

  • Address bystander intervention
  • Describe the complaint process available through the City’s Commission on Human Rights, the State Division of Human Rights, and the EEOC
  • Provide the contact information for all three agencies.

Unlike the state law, this in-depth training is only required for employers of 15 or more employees, and the only employees who must be trained are those who work more than 90 hours per calendar year in New York City.  Additionally, the claw requires all new employees who work 80 or more hours per year to be trained within 90 days of hire.  The state law only encourages prompt training.  Also, unlike the state law, the NYC law requires employers to keep records of all sexual harassment training for at least three years, including a signed employee acknowledgment of such training.  Lastly, both the state and city law require the training to be “interactive,” meaning that employees must participate in some manner.  For example, if the training is web-based, then there must be a quiz at the end the employee must pass.

At this time, only New York State has created a model training document.  New York City is still developing its model training but has made it clear that this will be a bare minimum threshold.  In practical terms, employers are much better off hiring experts to develop a comprehensive training that will safely satisfy both state and city law.

Lastly, New York State has updated a few other laws related to sexual harassment.  First, the State now prohibits the inclusion of non-disclosure agreements (“NDAs”) in the settlement of sexual harassment claims, unless the alleged victim prefers one.  If the alleged victim asks to have an NDA, then he or she has 21 days to consider the NDA and seven days to revoke it after it is signed.  New York State now also prohibits requiring employees to arbitrate sexual harassment claims.  (It is, however, unclear whether this prohibition is invalid due to the Federal Arbitration Act.)  The State has also expanded coverage of protection from sexual harassment to include non-employees like contractors, subcontractors, vendors, or consultants.  Finally, New York State now requires employers to post employee anti-sexual harassment rights and responsibilities in English and Spanish, and provide, at the time of hire, a sexual harassment fact sheet to all new employees.

We anticipate that more and more states and localities will follow New York’s lead in taking efforts to prevent sexual harassment in the workplace.  Our Labor and Employment team can help your business both adapt to the new laws and get ahead of the curve to prevent the need for changes to your sexual harassment training and policy in the future, preventing fire drills when new laws are enacted, and further reducing the risk of litigation and disruptive harassment claims.

Employers are well aware of the requirement to post various notices from the EEOC, DOL, and other acronym-bearing state and federal agencies.  Unfortunately, many employers have a “post it and forget it” mentality and fail to regularly update those posters and required notices.

These agencies, however, are often issuing updated required postings and employers who fail to heed those requirements can be assessed fines and potentially face criminal charges.  In California alone, there were 40 mandatory changes in 2017 and more than 30 mandatory changes in the first seven months of 2018, with more on the way.

A few recent noteworthy changes for employers in California and New York City deserve attention:

  • The California Employment Development Department has made a mandatory change to the notice to employees that provides information about unemployment insurance, disability insurance, and paid family leave. The EDD released this new, mandatory posting on July 3, 2018, although the revision date is May 2018.

    California employers should print the updated notice and post it where employee notices are generally posted.  The new notice (EDD 1857A) is available in both English and Spanish and may be downloaded here.

  • Beginning September 6, 2018, the “Stop Sexual Harassment in NYC Act” requires all employers with employees working in New York City to post a formal notice in a conspicuous location on their premises and distribute a fact sheet to newly hired employees. These documents, issued by the New York City Commission on Human Rights, provide information on the Act, as well as on what constitutes sexual harassment, how to report sexual harassment, and where to find additional resources.

The NYC legal notice can be downloaded here.

The NYC fact sheet is available here.

In addition to making these required updates, all employers should develop and maintain a tracking system to regularly check for mandatory updates for both federal and state postings and replace any out of date notices.

Refusing to serve a patron is a hot topic right now, and it is not something any employer should take lightly. When recently asked about this issue by Thomson Reuters, partner Seth Ford and staff attorney Matt Anderson outlined the do’s and don’ts for a refusal of service policy. The main point is that employees themselves should have very little leeway to make such decisions on their own or based on their own opinions, save for extenuating circumstances.

These quotes can be found in Thomson ReutersEmployment Alert dated August 6, 2018 in an article titled, “Stop Trouble Before It Starts With A Refusal Of Service Policy” by Maureen Minehan, found here (used with permission).

Pay equity is a hot topic – and not just in employment and HR circles.  Both inside and outside of the courts, the issue has gained national attention and is spurring legislators in states across the country to act. Recent developments are a timely reminder to all employers to start thinking proactively about pay equity and ensure pay is based on proper criteria (performance, experience, effort, skills) and never gender or other protected characteristics.

For instance, in March, a California Court made headlines after allowing a class action complaint alleging systemic pay discrimination on behalf of women in thirty enumerated job positions employed by a high-profile technology company to proceed, in part based on allegations that the company had a business-wide policy of considering new hires’ previous salaries when determining starting salary and job level.  Additionally, in a case that’s grabbing attention from lawyers and non-lawyers alike, Rizo v. Yovino, the Ninth Circuit Court of Appeals reversed course from an earlier decision and held that the employer could not use a female employee’s prior salary alone as the basis for her current salary.

Outside the courts, this year saw even greater attention paid to Equal Pay Day, celebrated in 2018 on April 10 – a date which symbolized how far into the year women must work to earn what men earned in the previous calendar year.

On the heels of these court cases and increased attention, several states have taken it one step further by proposing, and enacting, new or enhanced legislation centered around pay equity.  California was among the earliest to adopt a state pay equity law, but the trend has continued to gain momentum with other states, such as Massachusetts, Delaware, Oregon, and, recently, Washington and New Jersey, following suit.

For example, last month New Jersey enacted what some consider to be one of the strongest pay equity measures in the country.  The law, which will go into effect on July 1, 2018, bans unequal pay for “substantially similar work” and allows victims of discrimination to sue for up to six years of back pay.  Successful employee claimants will have the opportunity to seek monetary damages of triple the amount lost.  New Jersey’s law is considered comparatively strong because it prohibits pay disparities based upon any characteristic protected by the New Jersey Law Against Discrimination—so it is not limited to gender alone.

Likewise, in March, Washington state enacted an updated Equal Pay Opportunity Act.  The law, effective June 7, 2018, prohibits discrimination in compensation based on gender (although pay differentials based on a job-related factor or factors that are consistent with business necessity are not prohibited).  Employers also may not limit or deprive career advancement opportunities based on gender and may not require nondisclosure of wages (or “wage secrecy”) as a condition of employment.

These are just two examples of new laws targeting unequal pay; other states may enact similar laws (or even laws providing broader protections) moving forward—and you can be sure your employees will be paying attention.  Prudent employers will review their pay structures now and regularly to avoid potential problems later.  If you would like assistance reviewing your pay structure, please reach out to your favorite Troutman Sanders employment attorney and we’d be more than happy to assist.

 

We wrote recently about the Trump Administration’s efforts to roll back the Obama-era NLRB’s workplace handbook and rule restrictions. It’s time to update you further on where that effort stands.

As a reminder, the Obama NLRB held in December 2017 in The Boeing Company case that facially-neutral employment policies and rules will now be classified into one of three categories:

  • Category 1 includes policies that are legal in all cases since they can’t reasonably be interpreted as interfering with workers’ rights or because any interference is outweighed by business interests.
  • Category 2 includes policies that are legal in some cases, depending on their application.
  • Category 3 includes policies which are generally always unlawful.

The fact that legitimate business justifications associated with workplace rules would be given more weight when being evaluated by the NLRB was positive news for employers. What was still to be seen was how these categories would be applied to real cases.

A decision issued by an Administrative Law Judge last month gives us more insight on how the Board will apply these categories going forward. The case is Lowe’s Home Centers, LLC, Case No. 19-CA-191665 (NLRB 2018). The case involved a challenge to a provision of the company’s Code of Business Conduct and Ethics which included a section on “Confidential Information,” that stated:

Employees must maintain the confidentiality of information entrusted to them by Lowe’s or its suppliers or customers, except when disclosure is authorized by Lowe’s General Counsel and Chief Compliance Officer or disclosure is required by law, applicable governmental regulations or legal proceedings. Whenever feasible, Employees should consult with the company’s General Counsel and Chief Compliance Officer before disclosing confidential information if they believe they have a legal obligation to do so. Confidential information includes all non-public information that might be of use to competitors of the company, or harmful to Lowe’s, its suppliers or customers, if disclosed. It includes all proprietary information relating to Lowe’s business such as customer, budget, financial, credit, marketing, pricing, supply cost, personnel, medical records and salary information.

The provision’s reference to “salary information,” caused the challenge, but the company argued that its rule did not prevent employees from discussing salary information with each other (which is protected by Section 7 of the National Labor Relations Act), but referred instead to situations involving a person entrusted with non-public information relating to the company, and also that its business justifications for the rule outweighed employees’ Section 7 rights.

The ALJ did not look favorably on this Code provision or the company’s arguments. Her ruling held that the “provision may be read to preclude employees from discussing their salary information with one another, as well as non-employees such as union representatives and Board agents, which the Board has found to infringe on employees’ Section 7 rights to discuss terms and conditions of their employment with others.” Further, the ALJ emphasized that “[e]mployee discussions regarding wages, the core of Section 7 rights, are ‘the grist on which concerted activity feeds,’” and that “the Board has consistently held that rules or provisions which prohibit employees from discussing wages are unlawful.”

The ALJ explained that rules prohibiting employees from discussing salary information are per se unlawful (falling in Category 3), obviating the need to even conduct a balancing test (as would relevant with Category 1 or 2). Even if a balancing test were used, the ALJ found that the adverse impact on the employees’ Section 7 rights outweighed the company’s asserted business justifications. So, the company was ordered to rescind the unlawful policy and to notify employees of the change.

The lesson for employers here is that existing policies need to be carefully reviewed and new policies scrutinized even considering the Board’s current, more employer-friendly analysis. This case shows us that something as seemingly innocuous as the definitions section of an employee policy can still cause an employer significant problems.

Many employers require employees and applicants to take personality testing (think Myers-Briggs). Others are seriously considering adding this as a component of their hiring and employee engagement efforts. Companies want to get a sense of an individual’s opinions, attitudes, feelings, motivations, preferences, interests, emotional makeup, and style of interacting with others. This information, some believe, can help employers make predictions regarding job performance and success. At the very least, it allows employers to get to know an applicant through more than just the traditional interview process. These tests, however, raise many legal issues, particularly in the areas of potential discrimination claims and privacy concerns.

As an initial recognition, personality is not a protected class. Indeed, courts have routinely held that someone’s personality is a legitimate, nondiscriminatory reason to not hire an applicant or take adverse employment action against an employee. Yet personality testing still has the potential of violating the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”). For example, if an applicant can show that the personality trait for which the employer screened was really a mask for discrimination of a protected class, the employer could be found to violate federal discrimination laws. So, if the employer is screening for a personality trait it connects with a protected class and makes its decisions based on that trait (possibly as a proxy or substitute for that class), that can constitute discrimination.

Furthermore, Title VII, the ADA, and the ADEA all have requirements for all employee testing that employers must adhere to when giving a personality test. For example, Title VII permits employers to administer professionally developed ability tests and take action based on the result. But, such tests must be implemented in a way that does not discriminate against protected classes, and ideally validated in advance as not having a discriminatory effect. Furthermore, employers are prohibited from adjusting the test scores based on an individual’s protected characteristics; using different cut-off scores for different protected classes; or otherwise altering the results of the test in any way. Lastly, the test must be job-related for the position at issue and consistent with a business necessity.

Testing clearly presents risks – of claims of discrimination, in addition to actual proof of such behavior. There have been numerous lawsuits related to personality testing under the ADA, Title VII, and the ADEA, with topics litigated including:

  • allegations of bias in determining traits important for the job
  • an employer purportedly asking questions that implicate protected characteristics
  • claims of bias in administration and scoring
  • whether the testing is a prohibited pre-offer medical examination
  • whether the test suggests a disability or a perceived disability based on the results, and
  • allegations of administering the test to discriminate based on age.

So, before you implement, add or change tests for employees or applicants, you will want to consider the risks they pose and balance that against the expected benefits of the testing.

Personality tests also raise potential privacy issues. While personality tests do not appear to violate the federal Employee Polygraph Protection Act, they may violate more restrictive state laws. For example, a Massachusetts law prohibits testing that renders an opinion on a job applicant’s honesty. Employers may also face claims based on the intrusiveness of the questioning (i.e., the questions are highly personal and/or offensive), or a failure to protect the privacy of the results. These state-law claims have thus far been brought have not seen notable success, but they have also not been tested nationwide, and new state and local privacy laws are enacted every year.

As personality testing becomes more and more popular among employers, interpretations of existing laws will inevitably become clearer and more settled. But new laws will likely join them, creating regular confusion and doubt. The best bet is to work your favorite employment counsel to help review and craft a personality testing policy that both conforms with existing law and is flexible enough to evolve as the issue changes over time.

When President Trump fired then-Secretary of State Rex Tillerson earlier this month, he did it in one of the most public ways possible: on Twitter.  The kicker? He had not told Tillerson, who was traveling in Africa at the time, about the decision in person before tweeting it.  (Although White House officials have stated that Tillerson was given the news in advance on a phone call with White House Chief of Staff John Kelly, Tillerson was not told face-to-face before the rest of the world found out). Tillerson’s “termination by tweet” offers a timely reminder to all employers about the right (and wrong) ways to handle the firing of employees.

Separating an employee can be a stressful process for everyone involved.  Prudent employers will keep in mind the following tips to handle the situation in an appropriate way:

Handle an employee termination in person.

Firing an employee by email or letter (or tweet!) might seem like the easy way out. But, even if the employment relationship ultimately is not working out, you owe it to your former employee to discuss the decision in person.

On that note: make sure this in-person meeting occurs in the office, in a private setting.  There is more possibility of confusion when someone is fired in a more informal setting, such as at a company event or offsite meeting.  Additionally, there is more possibility of embarrassment or even public displays of emotion by the employee when someone is fired in front of other people.

While there are some very rare circumstances that may require separating an employee in a way other than through a face-to-face meeting, those should truly be exceptional, and discussed with key HR leaders and legal counsel before they occur to make sure there is not a better way to handle things.

When possible, make sure you’ve given clear signs prior to termination that the employee’s performance is not meeting expectations.

It is important to have a truthful, business-related, and non-discriminatory reason to fire an employee.  When possible, back this up with a clear record of the employee’s behavior, whether it’s poor performance, a bad attitude, or something else, over time, and maintain those records. Make sure you share your thoughts with the employee in formal and informal reviews and evaluations before you fire them.  This gives them the opportunity to improve, and, if they do not, will help minimize the chances for surprise, anger and confusion as the employee will not be able to (legitimately) say they didn’t see (or at least couldn’t have seen) the termination coming.

Also, when firing the employee, make sure that your truthful, business-related reason for the termination is clearly communicated to him or her at the time of the termination.  This will become critical in the event the parties wind up in court.

Keep emotions in check.

Make sure that you never fire someone in the middle of a disagreement or other emotionally charged situation—you do not want a decision about someone’s employment to come out of the heat of the moment.  Take a moment (or longer) to cool down first and make a sound decision.

On the other hand, do not let your personal sympathies for the employee keep you from being clear (and standing your ground) once you have made the decision to fire them. Although you might feel better “letting them down easy,” such behavior will only lead them on, ultimately making the termination more painful and drawn out for everyone involved. Let them respond and ask questions, if they wish, and respond honestly and with courtesy, but avoid getting caught in an argument regarding the decision.

In sum, take a “what not to do” lesson from the President and make sure you keep the above tips in mind the next time you find yourself handling an employee termination.  If you need assistance in managing the process or have questions, reach out to your favorite lawyer – before you fire that problem employee.