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THE FORBIDDEN PHRASES: How to increase the chance of litigation over an employee’s termination.
Unless the employee is covered under a Collective Bargaining Agreement or a contract for a definite term, most states, including Wisconsin, consider the employment relationship to be at-will, i.e. an employer may terminate an employee without a defined level of “cause”. While many factors may contribute to the decision to terminate an employee, being honest and forthright in the termination process is an important consideration.
No employee is ever terminated without a reason. There is always a reason and unless it is an unlawful reason there is no purpose to be gained by not being forthright with the employee. When discussing the termination process with employers, I have heard them suggest that the employee be given an explanation that really has nothing to do with the purpose for the termination. I will call them the “forbidden phrases”. Using these phrases to explain to the employee why he or she is being discharged can foster as opposed to avoid employment litigation. Here they are:
“We are going to go in a different direction.” This comment is very popular today, but it tells the employee nothing about why he or she is being terminated. It raises more questions than it answers such as “why can’t you change directions and still keep me?” “Does this mean you are going to stop cutting hair and begin manufacturing airplanes?” But more importantly it tells the employee that there is a “real” reason that the employer is choosing not to disclose.
“I am letting you go at will.” This is a favorite phrase of employers who are unaccustomed to removing undesirable employees. They have likely been told that an at-will employee may be terminated for any reason or no reason at all. A close relative is the phrase “We are terminating your employment and I don’t have to give you a reason.” Both of these statements regarding at-will employment may be true but the affected employee couldn’t care less. The employee knows there is a reason behind the termination and the use of these statements instead of the real reason will convince the employee that the employer is hiding something.
The following phrases are often used by employers when an employee has not been able to successfully become part of the culture of the workplace or it has been decided that the employee does not work well in a team setting. Instead of using the performance issue as a basis for the termination, employers will often prefer to say “you are not a good fit” or the more unhelpful quote “it just isn’t working out.” Since more employees than not are or have been at some point in their work lives, members of a protected class, being terminated with the statement that “you are not a good fit” or “it isn’t working out” is often perceived by the employee as a cover to mask a discriminatory reason for the termination.
In a recent decision, the 7th Circuit Court of Appeals sent a case back to the lower court for trial, to require the employer to explain why its decision to “eliminate her position”, and the reason given to Human Resources that the employee “doesn’t fit into our culture”, didn’t really mean the employer disliked pregnant employees. (Makowski v. SmithAmundson, LLC, No. 10-3330, 7th Circuit, November 9, 2011).
Employers should keep these points in mind when deciding to terminate an employee:
1. Employers don’t fire employees without a reason. Setting aside unlawful terminations, the employer from its perspective always has a legitimate reason to terminate an employee. Even though it is rare that an employee will agree with the employer’s analysis, that factor should not motivate the employer to mask the real reason with the use of one of the forbidden phrases.
2. Telling an employee the truth just might avoid a lawsuit.
3. When an employer articulates the reason for termination it is reassurance that the decision to terminate was the correct one.
4. Being able to justify the reason for an employment termination is the essence of a successful defense to a lawsuit. It is important for employers to remember that in the employment at-will setting the only reason that does not justify an employee termination is a reason that is unlawful.
In my next blog I will demonstrate how problematic it is for employers to articulate a defense when an employee is terminated using the forbidden phrases.