Terminations without litigation in the long-term care industry
Howard K. Kurman
In a series of three articles we will address the some of the myriad of issues that come up in the context of a proposed termination and provide the reader with proactive measures to protect one's organization from the plethora of attorneys who have made suing employers for “wrongful terminations” a cottage industry. Thus, today's article one will deal with proper workplace investigations as a predicate to terminations; part two will cover proper documentation of prior disciplines as a prelude to termination; and part three will discuss jury trial waivers, arbitration and mediation as tools to ward off expensive and unpredictable jury trial litigation.
Proper workplace investigations as a predicate to terminations – the dos and don'ts
Failure to adequately investigate any complaints or performance issues with an employee who may be subject to termination, or failure to investigate any issues raised by an employee subject to termination, may unnecessarily expose employers to liability. As a general principle, workplace investigations are necessary in order to ensure objectivity and to demonstrate sufficient fact finding was undertaken prior to taking the severe action of employee termination.
When conducting an investigation, employers should:
- Ensure that all resources relevant to the termination have been assembled and assessed.
- All performance reviews and disciplinary records should be fully reviewed in order to ensure that the termination message is clear, consistent and supported by a written record.
- All applicable employment records and/or policies should be reviewed to not only ensure appropriate grounds for termination, but to ascertain if the employee is contractually entitled to benefits at termination or, conversely, is obligated to abide by restrictive covenants such as non-compete agreements or non-solicitation agreements.
By conducting a thorough and objective investigation of the facts precipitating the termination, and by reviewing the specifics of the applicable employment agreements and policies, the employer will be in the best position to coherently and consistently explain the reasons for the termination, will be able to document the same, can point to the investigation as proof of due diligence, and can properly explain and implement any ongoing obligations that continue after termination of employment.
Using suspensions during the course of workplace misconduct investigations is frequently recommended. However, you need to be mindful of how long the suspension lasts while the investigation is being conducted. Obviously, an employer must be able to demonstrate the investigation has been conducted in as thorough, efficient and fair a manner as is possible under the circumstances.
Who conducts the investigation is often as critical as how the investigation is conducted. Usually, but not always, Human Resources will be tasked with conducting the investigation, at least in part. It is important, however, that whoever is conducting the investigation be well trained in legally sufficient investigatory techniques. These include: appropriate interview methods; appropriate interview documentation requirements; and avoiding dangerous conclusory statements in the interview notes. REMEMBER, interview notes are generally discoverable in future litigation so they should be parsed and reviewed in serious cases by counsel.
There are two roles that outside counsel can play in the investigation: First, outside counsel may in fact conduct the actual investigation. This is frequently done when the investigation involves very thorny issues, most frequently sexual harassment, suspected theft, etc. Second, outside counsel frequently advises on the process of the investigation and the witnesses and documents that need to be further examined. Part of this process is vetting the investigation that has been done to assure that both substantive and procedural due process has been accorded the suspected wrongdoer.
During any investigation, communications need to be closely controlled so that intemperate and inappropriate comments don't get communicated to other managers/supervisors. Furthermore, consideration should always be given to directing communications to outside counsel in order to shield the substance pursuant to the attorney/client privilege.
Principles of witness interviews: What to Know
- As in termination meetings, investigatory meetings need to be conducted in private, not on the shop floor. In sensitive situations, it is of great help to utilize a second person to record notes as it is very difficult for one person to both ask questions and record answers. Of course, the interviewers should be management representatives.
- In non-union settings an employee has no right to be represented by any other employee (unlike a unionized setting where the employee may be represented by another employee)
- When involved in a situation where an employee requests that he be represented by an attorney in an investigatory interview, reject such a request. Generally outside attorneys have no legitimate right to participate in any investigatory proceedings. If the employee refuses to be interviewed without counsel there is no obligation to permit him to be represented and you can make clear that his refusal to do so may be construed as a lack of cooperation in the investigatory process.
- Witness interview notes should be contemporaneously “cleaned up” and generally typed. This is the opportunity you have to remove any impertinent remarks that may be misinterpreted at a later point. Keep interview notes objective and non-emotional.
- In any investigation that may lead to termination, with almost no exception, you need to make sure and interview the potential terminated employee. If there is one thing that any outside fact-finder will be examining is the procedural fairness (due process) that you afford to the employee who may be terminated. Thus, even if you believe that termination is a foregone conclusion, interview the suspected offending employee anyway.
- Have a review process in place so that after all interviews are over there is an objective evaluation of all testimony that has been adduced in the interview process.
- Keep in mind that the interview process, particularly in workplace harassment investigations, is frequently a moving target and you have to be willing to expand your interview subjects beyond the people that you initially believe will suffice to complete your investigation.
Howard K. Kurman is Chair of Offit Kurman's Labor & Employment Practice Group. His e-mail address is firstname.lastname@example.org. Julius Steiner, a principal in Offit Kurman, provides counsel to clients on the entire spectrum of human resources management, employment and labor relations issues. His e-mail address is email@example.com. Offit Kurman is a full- service commercial law firm with offices in Maryland, Pennsylvania, Delaware and Virginia.