Strategies to Prevent Unlawful Employee Termination

For all of the harm that an unlawful termination can do to those involved, you would expect more efforts would be put into their prevention. In some cases, such efforts are minimal or fail to address certain situations like errors. In others, it's not something that is really considered. That doesn't mean that preventing unlawful employee termination isn't possible, but just that it's something that requires a consistent and conscious effort in order to be successful. Without taking a proactive approach to the situation and being aware of all the ways in which things can go wrong, you're not going to be able to accomplish much in the ways of prevention.

This article will explore some of the ways that both employers and employees can prevent unlawful terminations from occurring in their business. Topics are divided by who can do what, with some degree of overlap; it is possible for employees and employers to collaborate in their prevention efforts, should they choose to do so. Many of the methods listed here can be applied to help prevent accidents and errors that contribute to unlawful termination, in addition to intentional illegal firings. There may be more options for prevention available to you through resources in your business, local economy, and industry, so feel free to use the information here as a means of getting started.

For Employers

The majority of employers want to terminate their employees lawfully, when termination is necessary. Even those who may be inclined to take a less than acceptable route towards firing someone know that the risks involved may not be worth the effort. As those who are directly responsible for terminating an employee, the task of keeping things as lawful as possible falls to the person's employer. Prevention measures can help them keep themselves in line and avoid any costly mistakes with their decisions.

These prevention measures can be done by the employer on their own, or with the assistance of other leaders and management staff in their business. Collaboration with those persons, or with representatives from the business' legal or human resources departments, may be necessary to formally implement them into standard use. The management, legal, and HR staffers could also implement some of these measures on their own should the business' owner or primary employer fail or refuse to do so.

• Review Policies and Procedures-Loopholes in company policies and disciplinary procedures can make it easier for unethical or unlawful practices to sneak past without reproach. These can extend beyond terminations and into other areas like hiring and promotion protocols and the business' daily operations. The business' policies might have been fine when they were first established and could just be out of date. It is best to regularly review any rules that govern the actions carried out in the business to ensure that they are legitimate in their execution and that there are no flaws that can cause harm. Try to avoid things like "unspoken rules"; if there's something that needs to be frequently enforced, put it in writing and make it an official policy that can be referenced and referred to.1

Interested in learning more? Why not take an online Lawful Employee Termination course?

• Use a Review Board-Establishing some kind of system for major decisions, like terminations, in which the approval of more than one person is needed could prevent unlawful activities. Usage of a review board accomplishes the same thing, and it acts as a check and balance system. No action can be taken without a majority or a unanimous vote, which can be obtained by keeping the membership at an odd number. Those on the board could be leaders or other members of management within the business who would be well-versed on policy, possibly in a rotation to avoid conflicts of interest. Representatives from the legal and HR departments could act as permanent members to provide a sense of consistency.

• Establish a Firm Termination Process- the need to have a formal process without deviations was stressed. This is an ingrained measure against unlawful termination in regards to violations of due process and errors that arise from skipping necessary steps. Certain things need to be done leading up to and during a termination to ensure its validity. Being firm about following procedure helps, and it can stop someone who may want to actively deviate from the standard protocol for whatever reason. Having an established termination process also streamlines it to some degree-familiarity and habit makes it easier to do something-and provides consistency with each case.

• Stay Up To Date On Laws-It is difficult to keep your actions lawful if you are not familiar with the current laws. Government agencies frequently make changes to employment laws and regulations in order to keep up with economic and industry demands. It is expected that your knowledge of those laws, as an employer, remain as up to date as possible to maintain legitimacy in your actions. Any guidelines and reference materials related to those laws that you use should be kept current to ensure continued adherence.2 If necessary, take the time to refresh your knowledge and review the laws so you can stay up to date and ready.

• Be Consistent-People take notice of variances in disciplinary measures for their offenses, and that can make them question any punishments directed at them for their conduct. The circumstances surrounding a person's conduct are rarely one-time occurrences, or at least will have similarities with past offenses that others have committed.3 Punishment that does not match what others have gotten in the past will present as a major warning sign that something isn't quite right, especially if termination is an excessive choice for what they did. However, there may be a notable exception to this rule in instances where a person has exhausted any leniency due to them per company policy-like a strike system where a person has X amount of chances before they are fired for their conduct.

• When In Doubt, Go Neutral-it's completely okay to have feelings before, during, or after a termination. It keeps you human and allows you to show compassion towards your employees on what is undoubtedly a bad day for them. However, you cannot allow your emotions to cloud your judgement; anger could lead to harsher actions and sympathy to inappropriate leniency. Aiming for a neutral emotional response can help prevent your decision making abilities from being compromised. Should you be unable to keep your feelings in check and remain impartial, you could excuse yourself from the decision making process in favor of a third party or through the usage of a termination review board.

For Employees

There may be some question as to what an employee can do to prevent themselves from being unlawfully terminated from their job. Most people do not know or realize that they are at risk for termination until they are formally notified of the final decision. They may realize what could be coming based on the progression of disciplinary measures levied against them, but they still might not realize the unlawful component of the situation and thus defend against it. For employees, prevention against unlawful termination is a matter of planning for "if" rather than "when". These measures, to some degree, can also double as a part of a contingency plan should something go wrong and you are unlawfully terminated.

• Review Policies and Procedures-Familiarizing yourself with the policies and procedures your company has can help you remain aware of how things are supposed to work. Information such as stages of discipline and what offenses result in what punishments. The steps of your employer's termination process may also be something that is disclosed thorough policies, and thus may be of use to you. Most of the information regarding workplace policies and procedures are located in your employee handbook and through HR or other employee resources. Be sure to keep your information up to date with any policy changes that may be implemented, simply so you know the accurate version of the rules.

• Be Thorough With Contracts and Agreements-Contracts include the full terms of your employment, which usually dictate how any changes can be made to your employment. Taking the time to thoroughly read through and understand what is included in those terms can help you stay one step ahead of an employer who may try to violate those terms in their treatment of you. Any documents you sign as a part of your employment are legally binding, so you may inadvertently sign away some of your rights as an employee, such as with an at-will agreement, if you aren't careful.4 You can inadvertently compromise your ability to combat unlawful treatment through carelessness. Checking things over, seeking clarification when needed, and refusing (if possible) to sign a questionable document can prepare you in the event that something does go wrong despite your best efforts.

• Do Your Own Documentation-There's a lot of paperwork and recordkeeping that builds up over the course of a person's professional career. Much of that translates into valuable documentation that can help you out when you're in a bind with work and need proof to prove your case. Employers are usually expected to document all aspects of a termination, from the initial offense through to the formal end of the employment, but employees can do it too.5 Record major actions and events in your employment for your own uses. If you're up for a performance review, take note of when it happens, who does it, and any information regarding its findings that are disclosed to you. On occasion, check out your personnel file and make note of things that are significant and may be used in disciplinary measures against you or in your favor. Doing your own documentation about your professional actions could provide you with evidence that contradicts what is provided in an unlawful termination, which may halt things before damage is done. Even if you are wrongfully terminated, this may be information that you can use but not easily access once you've been formally fired.

• Know Your Rights-Your employer will be expected to adhere to any laws and policies in order to keep a termination lawful.6 This includes respecting your legally given rights as a person and as an employee. Unfortunately, not everyone is fully aware of what rights they have or the extent of them. This means that they fail to act on them or apply them when it's absolutely necessary. Knowing your rights means being able to recognize when they are not being respected and know what you are legally entitled to during a termination or other disciplinary act. Some questionable employers may try to take advantage of their employees' lack of understanding regarding their rights, so it can be a huge obstacle to their plans if you know what you're dealing with.

• Don't Be Afraid to Speak Up-When you sense that something isn't right with how things are being handled or how you are being treated, you should not remain quiet. Speaking up isn't something that should be viewed with fear, as it can do some significantly good things when the timing's right. You're acknowledging that something is wrong when you speak up, which can stop those responsible from doing further harm. In some cases, there may be unintentional harm being done by an employer's actions and they may not even realize it. Saying something can bring it to their attention and stop serious harm from being done-or at least stop any issues it is currently causing. When it comes to preventing wrongful termination, not being afraid to speak up when something is wrong is going to help you defend yourself and show your employer that you will not take this situation lying down. The way in which a termination meeting is conducted-usually in a very professional and orderly setting, with little opportunity for the employee to truly defend themselves due to their shock over the situation-is designed to prevent arguing and maintain order.7 In many cases, not being afraid to speak up can give you the opportunity to defend yourself and call out any wrongfulness that is immediately present.