One of the biggest missteps in many organizations is rushing to fire an employee before the case is ready to support it. When lawsuits inevitably arise, employers suddenly realize they moved too quickly to sever someone’s job without having all the facts to support a termination decision or to justify a termination for cause.
“Employers, often senior managers who are extremely frustrated with a direct report’s ongoing performance or conduct issues, pressure HR to ‘pull the plug’ before the case is in place to support that decision,” said Chris Olmsted, employment lawyer at Ogletree. Deakins in San Diego.
Six to 18 months after termination, while attending a hearing or trial, these business leaders realize in hindsight that they may have rushed to judgment without completing the homework. necessary to support the dismissal decision.
“And even if the decision was legal and proper, an incomplete record and possibly problematic shortcuts hamper the organization’s defenses against legal claims,” Olmsted said. “If the company had simply slowed down at the finish line and if HR could have kept a file justifying the authorization of the senior manager to end at this stage, much of the legal mess could have been eliminated or at least attenuated.
But how do you do that? What mechanism is available, whether at the end of a workplace investigation or a termination for cause decision, to slow things down administratively before an employee receives walk papers? What tool will satisfy the demanding CEO or senior executive who wants change to happen immediately while still allowing the organization leeway to delay the termination decision until the case is in favor of the employer?
“Paid investigative leave or paid administrative leave goes a long way to preventing costly lawsuits later down the road,” Olmsted said. “You are actually do somethingby order of the CEO, while giving your organization time to complete its investigation, interview the remaining witnesses or hear the soon-to-be-terminated employee’s side of the story, and dig deeper into the facts. »
Paid investigation leave
Workplace investigations can be complicated and time-consuming.
“To be effective, employers generally need to conduct thorough and timely workplace investigations,” said Eric Mackie, employment litigation attorney and counsel at Morgan, Lewis & Bockius LLP in Chicago. “Appearing to rush to the finish line can undermine investigative goals and increase expense and litigation risk. After all, plaintiffs’ attorneys typically argue that an employer who failed to take certain critical steps before firing an employee likely skipped other important steps in the process or failed to conduct a “thorough investigation.”
During an investigation, make every effort, especially with regard to any witnesses that the employee in question may present during the process.
“During the investigation, some witnesses may be out of the country, on leave or otherwise inaccessible,” Mackie warned. “But failure to ensure that a thorough investigation has been carried out can increase exposure to litigation and leave an employer helpless.”
For example, if you’ve interviewed five out of six witnesses and the sixth is unavailable overseas on vacation without internet or cell phone access, it’s probably reasonable that you met the “timeliness” standards. and “reasonable inquiry”. In different circumstances, however, if the person in question is the strongest witness for the employee, additional time and effort may be required to reach that witness, despite the difficulties. Placing the employee on paid investigative leave while you pursue that latest witness can be an easy way to both remove the individual from the workplace (the CEO’s goal) while saving your organization time. to complete the investigation.
“Think of it as an inexpensive insurance policy,” Mackie said, “in which you buy time to complete your investigation and grant the workplace due process. Given the risks and costs of a litigation, this decision could be worth the investment of a few extra days of the employee’s salary.”
Paid administrative leave
For our example, suppose a senior executive wants to fire someone for performance or conduct reasons. “I had it with this Paul Falcone guy, and he has to go…now,” the CEO said. “His performance remains sketchy and inconsistent, and his attitude is always negative and caustic. I’ve put up with him for too long, and I can’t take it anymore.” Fair enough. Your challenges? The employee in question is a fairly long-serving worker with a history of positive performance reviews (showing that he has met overall expectations year after year) and no progressive discipline to speak of. He is also over 40 years old and part of a protected class.
A quick dismissal decision based simply on the premise that Paul is employed “at will,” while technically legal, ignores all the nuances of employment law. “If charges of discrimination are alleged in litigation, a company will often need to present evidence showing that it terminated the employee for legitimate business reasons in order to refute the charges of discriminatory motive,” Olmsted said. . “A complete and contemporaneous record of the dismissal decision helps the employer meet this burden of proof.”
The cure? Don’t rush into termination. Warn the employee that they are not meeting minimum performance and/or conduct expectations. Some employees can improve, some can’t. Although it will take longer to fire the incompetent employee this way, you will be able to defend your actions in court much more effectively. In fact, most plaintiffs’ attorneys will say “if it wasn’t in writing, it never happened” (referring to complaints about the individual’s poor performance or misconduct). This is to your disadvantage as an employer. Turn the tables by taking corrective action and turning the case in your favor.
But what if your CEO has none of that? No progressive discipline, no worry that the individual will continue later down the road – the senior executive just wants the person to leave now, plain and simple. Again, paid administrative leave can help, as long as it is no more than a few days.
“Take the time to seek advice from a qualified employment defense attorney to ensure you’re not overlooking legal risks,” Olmsted advised. “Consider options to offer the individual to induce them to leave the organization on mutually agreeable terms, including a separation package in exchange for a signed release.” If the individual is clearly unhappy and the CEO just wants them gone, trying to broker a separation may make more sense than ending now and hoping it doesn’t come back to bite you with litigation. in the future.
“Each case is specific to a fact, so there’s no one-size-fits-all solution to these types of situations,” Mackie said. “And, of course, there is no guarantee that the employee will accept your package and instead be able to defend themselves. But a negotiated settlement can be much more effective and much less expensive than a lawsuit where you have no record of your dissatisfaction with the performance of the individual and that person is protected in several categories (eg age, race, disability status, etc.) It is true that there is a risk to attempt to offer a package when there is no disciplinary action on file to use as leverage to entice someone to resign, but, depending on the circumstances, it is probably wiser not to rush the termination and see if there is [a] dollar point that both parties can agree on to avoid litigation later down the road.”
Unpaid administrative or investigative leave
The question often arises whether investigative or administrative leave should be paid or unpaid. “There is no one right answer to this question,” Olmstead said. “It often doesn’t make sense to pay an employee who is likely to have committed serious misconduct. When there is uncertainty about what happened, a company may be more inclined to pay the employee.”
Some organizations will pay administrative leave unless the conclusion of the investigation shows that the individual has been guilty of some form of serious wrongdoing, such as serious harassment, theft, embezzlement or falsification. In these cases, a company will generally choose not to pay the individual for the few days off while the investigation is ongoing. This decision, however, should be made after the investigation is complete and all facts are known to justify the withholding of wages while management completes its analysis and review of the case.
The use of investigative and administrative leave is a smart strategy, particularly when key elements of an investigation are still pending or when a dismissal may have to take place with little written evidence in hand to demonstrate that the employee received due process in the workplace. Use this tool wisely, especially if you’re moving too aggressively toward termination, which will look like you’ve rushed to judge. There is no need to terminate immediately when paid time off will buy you more time to advance the written case in favor of your organization or allow for a negotiated settlement to mitigate future vulnerability to litigation.
Paul Falcone (www.PaulFalconeHR.com) is a frequent contributor to SHRM online and has held various HR leadership positions at companies including Paramount Pictures, Nickelodeon, Time Warner, and City of Hope Medical Center. He is a member of the SHRM Speakers Bureau, corporate leadership trainer, certified executive coach and author of all five books Paul Falcone Workplace Leadership Series (HarperCollins Leadership and Amacom). Other bestsellers include 101 difficult conversations to have with employees, 101 sample essays to document employee performance issues, 96 great interview questions to ask before hiring, and 2600 sentences for effective performance reviews.