Measure twice, cut once. This construction axiom applies with equal force to many situations an HR professional faces when preparing to take an Adverse action. These unpleasant HR tasks can take many forms:
- Involuntary termination
- Negative performance review
- Suspension because of policy or rule violation
- Written warnings
- Mandatory referral to an Employee Assistance Plan
- Rejection of requested transfer or promotion
Before taking action, it is wise to take account of what has happened and – more importantly – what you can prove happened. Consider the answer to these six questions:
1. Does the action violate any employer policy or practice?
Even though practically all employees are at will, employers can get in trouble for not following their own rules.
2. Does the documentation support the action?
Nothing is worse than using poor performance as the underlying reason when the written, oral and electronic evidence suggests otherwise. If employment will terminate, make sure that all post-termination documentation (e.g., non-completes, last known address) is in order. Don’t document after the fact; that often looks suspicious.
3. What laws may be implicated?
Applicable laws could encompass leaves, discrimination and whistle blowing, both at the state and federal level. Also, the National Labor Relations Act protects concerted activity for both union workforces, including use of social media.
4. Does the action pass the smell test?
You can be in the right and be able to prove that you are in the right, but if the timing is on the heels of the employee exercising a protected right , make doubly sure that you can prove your case. Retaliation claims are becoming more frequent.
5. What precedents have been set previously?
A common argument is that an employee acted different in the past when faces with a similar situation.
6. Has the employee been given every reasonable chance to succeed?
Remember that a jury is usually composed of peers of the employee, not the employer. Understand where juror’s preferences lie. Before taking action, make visible efforts to improve performance. You should be able to say, “We gave every reasonable chance.”
Ultimately, you should understand two truths. First, taking all precautions is no guarantee against a lawsuit. In the 21st century, almost anyone can sue anyone for anything. Second and finally, weigh the risks. Sometimes, failing to act can have worse consequences than carrying out an unpleasant or even unpopular decision.