Employment litigation is one of the fastest growing sectors of litigation. Employers have done a good deed by educating workers about their rights; unfortunately, this can sometimes result in more claims. Approximately one out of five lawsuits nationwide is filed by a current or former employee. Among the employment cases, retaliation claims specifically continue to grow. In a retaliation claim, the focus shifts to how the company reacted to the original employee complaint, and away from the original complaint.
So, if you are terminating an employee, make sure you follow some basic points:
- Have proper and specific (not generalized) documentation of performance problems;
- If the employee has lodged a complaint, ensure you’ve conducted and documented a full and complete investigation;
- During the investigation, obtain signed statements from co-employees – don’t make legal conclusions;
- Be thorough; and
- Have and articulate a valid legal discharge decision.
Make sure you issue a Legal Hold notice at the earliest opportunity to preserve all records and documents and put relevant employees in the company on notice that they must preserve records and keep those records secure.
DO NOT alter or destroy any records in the employee’s file because you do not want a spoliation claim, which could become worse than defending the employee’s initial complaint.
Lastly, Consider using a pre-discharge checklist – a sample checklist can be found on Husch Blackwell’s website.