DICTA August 2022

Page 13

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jared Garceau

Lewis Thomason, P.C.

EVERY EMPLOYERS’ NECESSARY EVIL: TERMINATING EMPLOYEES While terminating an employee is not something any employer likes to think about, it is a necessary evil for any employer. If you manage a law firm with at least eight (8) employees, ensuring that your firm terminates an employee the right way can save you in a future wrongful termination lawsuit. While Tennessee is an “at will” employment state, you should always keep in mind the reasons for which you cannot terminate an employee – i.e.: for an illegal and/or discriminatory reason. While I’m confident that those reading this would never engage in such a practice, keeping these unlawful reasons in mind when terminating a problem employee can help one engage in some helpful practices prior to termination to head-off a future claim and/or better defend the decision later.

provide the separated employee with a Separation Notice within twentyfour (24) hours of the employee’s separation from employment.1 These notices do not have to be given to any employee who has been in your employ for less than a week or who will be recalled within seven (7) days. These notices are to assist the separated employee with an unemployment claim.

Give the employee the opportunity to improve. While it isn’t a comfortable conversation to have, providing accurate performance reviews that specify sub-par performance is a must. Documenting the legitimate reasons why the employee is having issues, maintaining the documentation in the employee’s file, and measuring future performance is key. Performance improvement plans are a great tool – however you and/or your HR professional need to be ready to follow up on it and monitor progress (or lack thereof ). Termination decisions should never be a surprise to the employee. Before terminating – Get your ducks in a row. Before terminating an employee, ensure that you have adequate and accurate documentation of the poor performance/problem area. If the employee’s file only contains their job application, resume, and benefits information – you may want to reassess. Good documentation speaks volumes in the event of a future claim or litigation. Further, before having the termination meeting, plan on who will attend, practice what you intend to say, and anticipate questions from the employee. Consider whether you will give the employee the reason for their termination and focus on the facts. Remember to consider logistical issues as well – i.e.: returning keys, passwords, and continuation of benefits. Don’t forget about the termination documentation. While your benefits administrator and/or third-party administrator can assist you with COBRA and any other post-termination benefits information, don’t forget that the Tennessee Department of Labor requires all employers to

When completing the separation notice’s section calling for the “circumstances of the separation,” consider using general terms like “violation of company policy” or “employee misconduct” or “poor job performance.” Being highly specific may cause you to inadvertently omit reasons and/or can unnecessarily escalate the termination process. However, rest assured that whatever you put in this section cannot be the basis of a libel or slander lawsuit against you or the employer. Tenn. Code Ann. § 50-7-701 provides: (c) All letters, reports, communications, or any other matters, either oral or written, from the employer or employee or former employee, to each other, or to the department, or to or by any of the agents, representatives or employees of any of them, which shall have been written, spoken, sent, delivered or made in connection with the requirements and administration of this chapter, shall be absolutely privileged, and shall not be made the subject matter or basis for any suit for libel or slander in any court.2 Moreover, the reason provided should be consistent with your actual reason for termination and supporting documentation. Inconsistencies, while likely inadvertent, can provide litigants evidence that your reason for termination was pretextual. Terminating employees is not an enjoyable experience, however, it is a necessary evil when running a business and/or law firm. Whether you take care of this task, or whether you delegate it to someone else, avoid making the experience even worse by handling the process with care.

1

2

See Rule 0800-09-01-.02 of the Rules and Regulations of the Tennessee Department of Labor and Workforce Development; see also tn.gov/workforce. Tenn. Code Ann. § 50-7-701 (emphasis added).

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. August 2022

DICTA

13