Employers Should Develop Sound Discharge Policy

Attorney offers 'Ten Commandments'

An employment law attorney who co-chairs the Labor and Employment Law Group at Bernstein, Shur, Sawyer & Nelson says businesses need to be aware of the risks involved in terminating employees or face the legal consequences. To better prepare employers, attorney Kate S. Debevoise has created a list of tips she calls "The Ten Commandments of an Effective Discharge Policy."

"What's important is that employers remember that employment termination is the most volatile situation in the employment relationship," said Debevoise. "Making sure you have an effective discharge process in place is your best safeguard against liability."

Debevoise's "Ten Commandments" to help employers avoid lawsuits are:

1. Lay the Groundwork Include information in your employee handbook explaining that employment may be terminated at any time for any reason and that the employee can also terminate his or her employment at any time. Employment applications should contain similar language.
2. Use a Progressive Discipline System Include one or more verbal warnings or counseling sessions, one or more written warnings and suspension without pay. Utilizing a progressive discipline system will ensure that a judge or jury, and the affected employee, will have evidence the employer did not act arbitrarily.
3. Provide Industrial Due Process Inform employees of the type of conduct which could result in termination, let them know the specific charges and allow them to respond by having the opportunity to identify witnesses who would provide information in their favor and explain any mitigating circumstances. -more-
4. Document Personnel Files Maintain documentation of progressive discipline. Verbal warnings and counseling sessions should also be documented.
5. Centralize your Discipline System Limit the number of management personnel who are authorized to discipline employees and use an independent review before suspending or terminating an employee. An independent review insures that arbitrary decisions and decisions made in the heat of the moment will not be implemented.
6. Facilitate the Transition to Subsequent Employment When termination is due to a reduction in the workforce or when no severe misconduct has taken place, allow the employee to voluntarily resign, enabling the employee to honestly state to future employers that he or she voluntarily resigned from the position. Also consider, depending on the circumstances and the employee, allowing a finite period of time for the employee to find another position or assist the employee in finding another job.
7. Control Participation of Employee Counsel Employees of private businesses, except in the case of unionized workplaces, do not have any legal right to have counsel, relatives or other representatives present at meetings discussing termination or discipline.
8. Consult Company Counsel as Needed Human resource managers and senior management should have employment counsel on call for consultation. The safest procedure is to consult counsel before implementing any termination.
9. Choose an Appropriate Time and Setting for the Termination Interview The end of the day is best to allow the employee to leave without commotion and reduce the internal discussion concerning the termination between the employee and other personnel. Two members of management should be present.
10. Conduct an Exit Interview This should be with someone who did not participate in the termination meeting. The employee should be informed of changes in benefits and final paycheck. Housekeeping matters should also take place in the exit interview such as return of company keys and property.

A shareholder and member of the firm's Litigation Department, Debevoise concentrates her practice in employment law and business-related litigation in state and federal courts and agencies. Her practice covers discrimination, sexual harassment, hiring and termination practices, employment contracts and non-compete agreements and other workplace issues. Debevoise, a Yarmouth resident, serves as employer representative on the Maine Board of Arbitration and Conciliation. She joined BSSN in 1987.

Bernstein, Shur, Sawyer & Nelson is one of the state's largest law firms with more than 60 attorneys in offices in Portland and Augusta. The firm provides legal services in all major subject areas, including corporate and commercial law, litigation and trials, municipal and governmental affairs, and tax and estate planning. BSSN also has an active practice in intellectual property, employment law, commerce and technology, health care law, legislative affairs, public utilities and other regulated industries.
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