Successful Employment Termination Strategies: How to Get Rid of the Troublesome Employee


Table of Contents

  • Introduction
  • Litigation Avoidance From the Outset:Effective Recruitment and Hiring
  • Building the Record: Effective Performance Appraisals
  • Practical Concerns With Discipline and Termination
  • Conclusion


In simplest terms, all employment litigation involves an allegation that the employer did not make a sensible and responsible business decision: that it broke a promise (such as failing to follow a procedure upon which an employee relied), acted for a reason that the law defines as improper (such as “whistle-blowing”) or irrelevant (such as race, sex or age) or behaved in a manner intended to cause harm and wholly unrelated to business interests (such as gossiping about the reason for an employee’s termination to those with no business need to know). While litigation is often unavoidable and ultimate success can never by guaranteed, the simple truth is that practices and decisions that make sound, practical business sense are the most defensible in litigation.

Put another way, “discrimination,” in the dictionary sense, is not only lawful, it is essential to the proper functioning of any organization. That is, when an employer chooses the better qualified candidate over the lesser qualified candidate, it is “discriminating” on the basis of merit. By ensuring that the standards utilized for this “discrimination” are fairly and, most importantly, demonstrably related to the job in question, the employer does both a better job of managing and lessens its exposure to claims of unlawful discrimination. The key to litigation risk reduction, then, is to ensure that the best business decision is made in the first instance and the factors underlying that decision are properly documented and communicated. Concomitantly, having made, or committed to make, the best business decision possible, it is senseless to expose that decision to legal challenge by introducing factors or considerations unrelated to business needs.

In short, an employment termination decision is, simply, a business decision with potentially significant legal consequences that should be considered, made and implemented with the same degree of care that attends any other comparable decision. It is important to the successful defense of a claim that an employer understand the different types of claims that may be raised. It is far more important in the prevention of such claims to understand the steps an employer can take to reduce the possibility of a plaintiff being successful.

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