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Wrongful Terminations Are Just Wrong... And Expensive
It has been said that next to losing a spouse or a child, losing our job can be the most emotional experience in your life. The insecurity that comes with rejection, uncertainty about how bills will be paid, and the loss of identity that comes with having a job and bringing home the bacon has driven some to emotional breakdown. It is for these reasons, and the impact on the organization, that bosses should be careful to properly execute terminations and to pursue them for the right reasons in the first place. Wrongful termination The Equal Employment Opportunity Commission (EEOC) reports that wrongful termination is one of the biggest areas of legal claims they see. When a termination is done for the wrong reasons, or executed improperly, legal loose ends are left dangling that end up costing organizations and individuals millions in punitive damages.
In most cases where individuals were wrongly terminated, a boss was offended that an employee pointed out wrongdoing on the part of others, or illegal practices carried out by the organization. The law has a term for these individuals, whistleblowers. These people in power do not want their knowledge of wrongdoing to be brought to light so, they mistreat the whistleblower, terminate them or both. California has robust whistleblower protection laws, the federal government passed the Whistleblower Protection Act in 1989 and many organizations have similar policies on the books. Frighteningly, most bosses are not aware of these laws and boldly walk their organizations into a lawsuit that will be costly financially as well as devastating to their reputations.
Attorney Robert Odell researched the largest wrongful termination verdicts in the state of California by settlement amount. His work included 31 cases between 2011 and 2017 with settlements between $25 million and $1.78 million. 10 of those cases involved Whistleblower Protection violations, 9 of the cases involved some type of mental or physical injury the employer did not want to accommodate, 6 involved racial or age discrimination, and one guy who was terminated for refusing to drive his fuel tanker in “a ferocious storm while intoxicated”. He was granted $6.24 million. Due to strict confidentiality provisions, details are often not available. The largest settlements are due to punitive damages, the courts uses this type of award to deter companies from continuing bad behavior. Usually, plaintiffs are awarded back pay and legal costs, however when the behavior is egregious, punitive damages are also awarded.
Part of leadership is accepting and dealing with things you would may not be willing to deal with in your personal life. You may not want to pay to accommodate or compensate an injured employee, you may not be happy with the behavior of individual employees, you do not have the right to fire them because you do not like them or are not happy with them. If you have a problem with someone or sense that there is a problem, bring it up and deal with it. When you were in grade school and didn’t like another kid, you could choose to avoid one another. A leader does not have the freedom to “not like” people, they need you and you need them. The leader has to take the first step and correct it. If you are led by ego or emo (emotions), pull out your checkbook and start with six zeroes and expect a seventh.
Author Toby Graham with the HR Compliance Company, Compli, offers three things to think about in your termination process:
1. Take a systematic approach to address discipline and termination. Individuals interpret and apply rules based on their perceptions, strengths, and biases. This always creates inconsistencies from one employee to the next that will stand out in court. One system applied in all departments, overseen by one designated leader, usually your HR director.
2. Build a repeatable process. This process is often found in your contract, some are more explicit than others, but all need to be followed. If the process needs to be updated, take it to the table and renegotiate it, but do not vary from it. Variance from the contract will cost the organization.
3. Document everything. Your memory isn’t as clear as you think it is, if it isn’t in writing it didn’t happen. A hearing officer will want to see what happened and what was done in response to each incident. The responsibility will rest with the employer to have followed process and not having violated employee rights or laws.
Although details of the federal civil lawsuit have yet to emerge, former Christian Brothers High School (Sacramento) principal, Chris Orr, is claiming wrongful termination against the school board of directors. Parents and community members have been asking questions and demanding information since his abrupt termination in October. One parent claims to have received a message from school leadership implying loss of tuition support for families standing with Orr. Some of what has been printed has hinted toward racial discrimination, the presence of the NAACP and Cornel West would suggest his claim would be based on racial discrimination. Orr’s claim is that he was fired without warning or explanation. In a case like this, the damage to reputations has been done however, if the Board has followed Tobi Graham’s advice they have a chance to prevail in court and begin to rebuild their brand. If the complaints are accurate meaning secret meetings and arbitrary policies emerging from those meetings did occur, Christian Brothers could lose twice. The second loss will be expensive.
In most terminations there will be at least some give on the part of the employer and employee. These agreements are usually spelled out in the form of a settlement agreement where the terms for each side is laid out explicitly. If you have a problem with an employee, spell out the problem in your documentation process explicitly, and offer suggestions that employee can access to improve. California courts will want to see that the employer offered support for improvement.
Consider what it must be like to be on the receiving end of a termination, listen and be as compassionate and empathetic as you can bring yourself to be. In some egregious cases, you have to cut ties and move on. In every case, consult your organization’s expert; HR Director, Lawyer, etc. Wrongful terminations have a culture and morale cost that impacts other employees and your bottom line so it is good business to do it right. Follow the law, adhere to Tobi Graham’s advice, eliminate emo and ego from your process and you will maintain your brand, avoid expensive litigation, and you will SOAR!
William A. Brown
December 22, 2019
https://terminationlawyers.com/largest-wrongful-termination-verdicts-california/
https://www.compli.com/blog/how-wrongful-termination-impacts-your-business/
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