Remember this the next time you have to terminate an employee: If you plan to prepare a post-discharge summary, don’t succumb to the temptation to add new reasons to justify the firing. Post-discharge memos should simply describe the decision and how you carried it out, not look like an attempt to justify a decision made earlier.
Note: If you later discover additional reasons for firing the employee, go ahead and record them. But carefully note the circumstances and the date when you added the additional rationale.
Recent case: Richard Kremp worked for Wachovia Bank until he was fired at age 47. He sued, alleging age discrimination. At the time he was terminated, Wachovia told him he was being fired for refusing to cooperate with an investigation into alleged mishandling of accounts.
As the suit proceeded, an internal memo surfaced that had been written by a supervisor several hours after Kremp was fired. It gave details on the reasons for the termination, including specific findings about the investigation that indicated Kremp may have manipulated some accounts to show he was more productive than he really was.
Kremp said the memo was proof the bank had manufactured additional reasons to cover up the real reason—age discrimination.
The court disagreed. It said the memo merely provided details on the discharge decision and didn’t add new reasons. The case was dismissed. (Kremp v. Wachovia Bank, No. 09-2847, DC NJ, 2010)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Even innocent age-related comments can trigger a bias lawsuit
- Hey, boss, you'd better call HR! Warn managers: Don't fix complaints informally
- Employee making threats? Know how to legally handle explosive situation
- Do we have to warn someone before firing?