Tips for Avoiding a Wrongful Termination Charge

As today’s historically high unemployment rates suggest, most people know someone who has endured the experience of losing a job. George Clooney’s portrayal of downsizing expert Ryan Bingham in the film Up in the Air has become something of a cultural touchstone: the employer’s paid representative coolly providing the bad news of imminent unemployment. However, the reality for most businesses, including medical practices, is that the business owner or another employee is tasked with the uncomfortable role of terminator. If the termination is handled improperly, the former employee may lodge a complaint against you. In fact, wrongful termination charges filed with the United States Equal Employment Opportunity Commission (EEOC) rose last year for the seventh consecutive year.

Here are tips for avoiding a wrongful termination charge:

Be Deliberative

The difference between a termination that gives rise to a dispute and a termination that brings quick closure is often in the planning. A summary termination in response to something that just happened should be a very rare event. Even in a case in which an employee’s conduct clearly justifies immediate termination, you should take time to plan the termination.

The ability to terminate quickly and with clear legal basis starts at the beginning of the relationship. Well thought out employment-related documents (e.g., employment agreements, employee manual/handbook, detailed job descriptions, disciplinary memos and evaluations) should tell the story of why the relationship ended. They provide a contemporaneous record of the terms and conditions of employment, basic expectations of employee performance, the employee’s actual job performance, the reason for the termination decision and the post-employment obligations of the employee, such as restrictive covenant and confidentiality, and of the employer, such as the final paycheck and accrued vacation time.

Often, however, even when the need for termination is obvious, employment-related documents will not be crystal clear. Taking the time to review your practice’s policies and procedures and the employee’s personnel file—rather than relying on what you believe are in the policies, procedures and personnel file—will provide valuable context in deciding the best way to end the employment relationship.

You should consider the best way to transition the outgoing employee’s tasks with minimal disruption to the business.

Be Pragmatic

You should consider the best way to transition the outgoing employee’s tasks with minimal disruption to the business. A termination that leaves you shorthanded may be necessary in some situations, but you can ease into many terminations in order to mitigate disruption to practice operations. Also, you should consider the impact of an employee’s departure on patients and the public image of the practice. Sometimes employment agreements will provide protection against unfair competition, the unauthorized disclosure of confidential information and disparagement in the community. Other times, no such protections are in place.