Discipline and Discharge

      Perhaps the conduct posing the biggest risk of liability for employers is disciplining and discharging employees. A quick review of some basic questions may indicate the source of potential problems and signal an area that needs a closer look before taking adverse action.

• What was the precipitating cause for the adverse action?
  
• What is the employee's past record?
  
• Has there been an adequate investigation?
  
• Do the facts confirm with reasonable certainty the employee did what he or she is charged with doing? What precipitated it?
  
• How was the investigation conducted?
  
• Are there confirming statements or interview reports?
  
• Was the employee given an opportunity to explain what happened?
  
• Does the company have written employment rules or policies? If so, are they distributed to ( or at least known by) all employees?
  
• Did the employee violate a specific rule? Which one?
  
• Is the rule lawful? Does it adversely affect minorities, women or members of a protected class?
  
• Has the rule been enforced consistently?
  
• What was the most similar instance in which the company terminated someone in the past? How long ago did that occur?
  
• Did the company ever warn, rather than discharge, an employee for a similar act? If so, are there significantly different or changed circumstances which would warrant termination in this case?
  
• Has the company reviewed the comparative data?
  
• Is the employee a member of any class protected by any law against discrimination?
  
• Does the rule have a disproportionate impact on members of any protected class?
  
• What is the composition of the employer's workforce with respect to potentially applicable protected classes?
  
• If the discharge is based on company rule, is the rule related to job performance?
  
• Have supervisors been trained to recognize, correct or avoid unlawful discrimination? (This can be a significant factor in avoiding damages for a willful violation)
  
• Has the facility posted a policy prohibiting sexual harassment and other forms of discrimination, including a published remedial and investigative procedure?
  
• Was the employee given any oral or written assurances of continued employment: policy requiring that a particular disciplinary procedure would be followed?
  
• Did the employee receive notice or sign a disclaimer indicating the employment relationship could be terminated at any time and for any reason?
  
• Would the discharge give rise to any common-law contract or tort claim?
  
• Would the discharge violate any public policy or statute?
  
• Has the employee filed any claims against the employer?
  
• Has the employee formally testified or provided information against the employer in connection with any legal proceeding?
  
• Did the company comply with the notice requirements of the Worker Adjustment Retraining and Notification Act?