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A Better Partnership


Feb 2008
February 18, 2008

Top Five Mistakes Employers Make in Firing Employees

Poor documentation, neglect and surprise are among the top mistakes employers make when terminating an employee, according to a Warner Norcross & Judd LLP attorney.

"Firing an employee is seldom easy, but employers complicate the process even more by not following the proper steps," said Senior Counsel Steve Palazzolo. "It is important to develop a standardized procedure, communicate the process clearly to all, document fairly and consistently – and then follow that procedure.

"Too often, employers ignore their own policies or skip critical steps, which can extend the termination process and make it more expensive. Yet it’s easy to avoid these types of mistakes, if employers take the time upfront to understand what they can – and cannot – do when firing an employee."

Palazzolo, who concentrates his practice in labor and employment law, said the following five areas are among the top termination mistakes employers make:

  1. Soften the reason you are firing the employee. While it may sound far-fetched, Palazzolo says it happens frequently. Employers think they are doing the employee a favor and write "job elimination" rather than "performance issues" in the termination paperwork. When the employee gets in front of a jury, the employer is put in the uncomfortable position of having to explain why he or she lied about the termination cause. Even if employers can get beyond that initial hurdle, Palazzolo points out that the paperwork trail is inconsistent with what they are telling the court.

  2. Neglect to follow your own rules. Uneven application of attendance policies is the biggest culprit, according to Palazzolo. Employers may have a three-strikes-and-you're-out policy, but then turn around and fire an employee for a second absence. He also said that another problem area is performance improvement plans. Employers will lay out a 90-day plan requiring an employee to take certain steps in order to keep his job, then get frustrated and fire him after 30 days. "Judges take a dim view of employers in either of these cases," Palazzolo said.

  3. Act inconsistently. Take two employees with similar employment records who both act egregiously by threatening a co-worker. "One of the fastest ways to get in trouble to fire Susie for making that threat, but to let Sam remain on the payroll," Palazzolo noted. "Employers must act consistently with their employees – or run the risk of lawsuits."

  4. Fail to use proper documentation. According to Palazzolo, this runs the gamut from not having enough documentation to have too much documentation. "For example, an employer wants to fire one of his employees but has never bothered to document behavior or performance problems," he said. "After meeting with his attorney, the employer starts writing up the employee left, right and center. Write ups in the file for the sake of write ups won't be believed." He also cautions against bad documentation, such as getting the facts wrong.

  5. Surprise the employee. One of the surest ways to fail in the termination process is by failing to warn an employee that he or she is on thin ice. Palazzolo notes that employers need to give appropriate notice and tell employees that their conduct or performance is inappropriate – and, if they don't change, will face being fired.

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About Warner Norcross & Judd

Warner Norcross & Judd LLP is one of the leading law firms in Michigan. With more than 200 attorneys in Grand Rapids, Metro Detroit, Lansing, Holland and Muskegon, Warner Norcross is a full-service provider of legal services. Nearly half of our partners are listed in the 2007 edition of The Best Lawyers in America. Warner Norcross was also named the best corporate law firm in West Michigan by Corporate Board Member magazine for the third year in a row. Warner Norcross has been recognized as a national leader in client service among law firms by BTI Consulting, as one of the nation’s leading employment law firms by Workforce Management, as one of the 101 Best & Brightest Companies to Work For in both West Michigan and Metro Detroit and as one of the Best Michigan Businesses by Corp! Magazine. The Firm represents local, statewide, regional, national and international clients in all areas of business and civil law.

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