Wrongful termination claims made by former employees are causing their fair share of headaches to administrators. Due to the increase in employment laws over the years, rapidly growing technology, social media, and other factors, employment practices liability claims are on the rise.
Claims for wrongful termination often follow a myriad of accusations from the former employee. Managing employees from a human resources perspective also means managing the school’s actions with employees to avoid violating government laws protecting employees. Challenges such as the Americans with Disabilities Act (ADA) compliance, sexual harassment accusations, family and medical leave act claims, Occupational Safety and Health Administration (OSHA) compliance, and other workplace requirements are often related to allegations of wrongful termination. It is illegal in all 50 states to terminate an employee for the following: discrimination, retaliation, refusing to take a lie detector, alien status, complaining about OSHA violations, and when a termination is a violation of public policy such as when an employee refused to perform an illegal act or exercised their right to vote or take family leave.
Prior to making a final termination decision, human resources should follow progressive discipline procedures and should provide an opportunity for the employee to improve and avoid being fired. Depending on the severity of an infraction by an employee, an example of a progressive disciplinary action plan includes:
- A verbal warning given to the employee as well as documented in the employee’s personnel file
- Should a second infraction occur, a written disciplinary action should be issued to the employee, including verbiage that any further violation could warrant termination. The disciplinary notice should be signed by the employee and kept in their personnel file. Should the employee refuse to sign, it should be documented in their personnel file and signed by two witnesses such as the employee’s immediate supervisor and human resources representative.
- Should a third violation occur, a final written disciplinary action should be issued to the employee, and if warranted, the employee terminated.
There are some fractions, however, that might warrant immediate termination such as embezzlement, falsification of documents, gross insubordination, etc. These items should be listed in an employee handbook that must be signed by all employees on a yearly basis and kept on file.
In addition to having well established progressive disciplinary policies the following should be considered when letting someone go: where to conduct the meeting, preparation for the meeting, explaining the decision, handling paperwork, answering questions, and concluding the meeting. Legal experts recommend beginning the meeting by informing the employee that you are terminating his or her employment as of a particular date. Beginning the meeting with small talk may create an atmosphere where the employee feels degraded once they realize they are being let go.
It is important to have a well-trained human resources employee who is able to keep the disciplinary and termination process professional and confidential. All disciplinary actions and terminations need to follow the procedure in place at your school instead of making rash firing decisions in the heat of emotion.
Pre-screening of employees to find the best match for your school environment goes a long way in creating an atmosphere of teamwork which is extremely important in an educational environment. Do not hesitate to require multiple interviews, group interviews, profile evaluations, and competency tests when screening potential employees.
Policies and procedures should be reviewed by legal counsel in the state where the school is located to make sure they do not violate any state employment laws or case laws decided in prior lawsuits. If you would like more information on employment practices liability issues in your state please contact a local employment practices law firm.
*Markel Specialty is a business division of Markel Service, Incorporated, the underwriting manager for the Markel affiliated insurance companies.
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