How to guarantee an employee that you fire Cannot sue you

Problem

We live in a sue-happy world. Employees are fully aware that there are many laws that govern when we can and can’t fire them. If you fire an employee, even when you are in the right, a female employee can file a sex discrimination lawsuit, a minority staff member can file a race discrimination lawsuit, any individual with a religion can file a religious discrimination lawsuit, a person with an international origin can file a national origin lawsuit, a pregnant employee can file a pregnancy discrimination lawsuit - the list goes on and on. It is time that we took back control!

In addition, difficult decisions sometimes have to be made about layoffs due to the current harsh, economic realities and challenging business climate. Tough choices also confront us when an employee is not performing and should be terminated. The decision is easy, of course, if the team member is completely at fault, the in-depth coaching and counseling performed by a skilled manager does not work and the person still chooses not to change. The decision is harder if the organization is partly at fault for his problems. What if he should not have been hired in the first place or he received poor training? What if he did not receive solid, timely counseling? What if the corporation allowed his inappropriate behavior to continue for too long? When it is time to let him go, in these cases an honest assessment would reveal that both he and the business are partly to blame. Still, he must be released.

Out of work individuals in today’s job market remain scared because of the uncertainty of the future, which is resulting in a lashing out at former employers in the form of employment-related lawsuits. Angry workers are also trying to “get back” by stealing customers, disclosing proprietary information and bad-mouthing the firm and its management staff while searching for a new position in the community.

This alarming and expensive trend is bound to get worse and affect your establishment unless you begin handling all terminations or downsizings with caution and savvy. Fortunately, techniques remain available for you to successfully fight back. You will be able to guarantee zero employment-related litigation from embittered staff and ensure none of your customers or trade secrets will be lost. You will be able to confirm that only positive communication will be transmitted from the affected associates to potential future clients.

Solutions

1. All of these benefits may be obtained by taking advantage of and expanding upon the regulations in a 1990 law that allows jobholders to waive their rights to sue for age discrimination. The Older Workers Benefit Protection Act (OWBPA), an amendment to the Age Discrimination in Employment Act (ADEA), provided the first, clear rules for companies desiring to eliminate the possibility of lawsuits arising from terminations or layoffs. Although the OWBPA pertains only to age discrimination, businesses have realized that the same rules will protect them from all employment-related lawsuits.
2. The OWBPA creates minimum requirements for the preparation and usage of a release form.
• This form relieves the employer from any liability for age discrimination.
• The release form is legally binding on the worker and will forbid him from filing a claim or lawsuit.
• The release must be understandable, so it should be brief and contain language that is plain and conversational.
• The release must advise the person to consult with an attorney and specifically refer to his rights or claims protected under the ADEA.
• Only rights or claims that arose on or before the date the form is executed may be addressed. Accordingly, the laborer may not exempt the corporation from any future acts of age discrimination.
3. A major key to ensuring the release is legal is that the team member may only release rights or claims in exchange for “something of value to which he is not already entitled.”
• For example, if he is entitled to severance pay or accrued sick and vacation pay, the organization will need to provide a different object of value.
• Establishments will often use outplacement services as that item of value. Outplacement services make the transition easier by assisting affected employees in securing their next position.
• Research shows that usage of these firms successfully reduce the time-to-employment by 25%.
• Effective programs will be determined that might consist of career planning, resume preparation, interview and job lead training, career consulting, salary surveys, job opening identification, office suites and clerical support services.
• Prior to the separation, the firms may help with notification-event coordination and disengagement logistics.
• Coaching and training of managers tasked with communicating the information will be provided.
• Both internal and external communications regarding the situation will be prepared.
4. Once outplacement services are secured and the release form is prepared and provided to the worker, he must be given at least 21 days to consider whether or not he wants to sign the release.
• Group reductions-in-force or situations in which staff members leave voluntarily via a group incentive program require a 45-day consideration period.
• An associate executing a release in settlement of an existing EEO charge or lawsuit must be given a “reasonable period of time.” The consideration period does not need to completely transpire before a release may be executed.
• Team members without pending EEO claims must be given seven days to change their mind once signing the release. Therefore, do not provide entitled monies, severance pay or outplacement services until the seven days expires.
5. Requirements for group termination and incentive programs include two more rules.
• First, at the beginning of the consideration period, all eligible people must be informed, in writing, regarding the groups of individuals covered by the program, eligibility factors and time limits.
• Second, all qualified associates must be instructed, in writing, about the job titles and ages of everyone who is suitable or selected for the program, and the ages of those in the same job classification or organizational unit who are not eligible or chosen.
6. Once the release form is signed and the seven day grace period passes, the release is absolutely binding on the jobholder.
7. Due to the success of releases under the OWBPA, businesses are including a laundry list of all possible reasons an affected worker might sue.
• The employers are finding that the expanded release form is also legally binding on the laborer and holding up in court.
• For example, when preparing a release for the OWBPA, the establishment would use a sentence stating the “employee is waiving the employee’s right to pursue any and all claims under the ADEA arising prior to the date that the employee executes the release.” Now, corporations are including a release from claims pertaining to laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Missouri Human Rights Act, tort law, contract law, wrongful discharge, discrimination, harassment, retaliation, fraud, defamation, emotional distress, invasion of privacy, and breach of the implied covenant of good faith and fair dealing.

Save Your Time & Ensure Compliance . . .
Take Advantage of Our Services Today!

1. Advice on terminations
2. Create release forms
3. Outplacement services

If you would like professional assistance in this area or another human resource area, please schedule a consulting appointment by calling (417) 881-8639 or (800) 378-3554, Fax (417) 889-6176, or e-mail us at lynne@haggermanandassociates.com.
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Lynne Haggerman
President/Owner
Haggerman & Associates
3447 South Campbell
Springfield, Missouri 65807