Do you hand out periodic bonuses to employees? If so, be sure you can clearly describe how you calculate bonuses and what employees need to do to receive one. If you must later terminate an employee—and claimwas the reason—she may point to the bonus as proof you fired her for discriminatory reasons.
A bonus based on team or store performance and given to everyone is the easiest to explain. If individual merit played a part, then make sure your discharge reasons are rock solid.
Recent case: Colette, who is black, worked for Applebee’s restaurants for many years. She started as a prep cook and worked her way up to manager. She became a certified trainer and presided over the opening of a dozen North Carolina Applebee’s branches.
Then a new supervisor was put in charge. Colette and other black employees claimed he was a racist who frequently referred to black employees and customers using the “N” word. Colette also claimed he tried hard to antagonize her and frequently questioned her judgment.
Colette was fired after allegedly having words with the supervisor over how to administer a test to applicants. Her termination came just a month after she received an unspecified bonus payment.
She sued, alleging that the real reason she was fired was racism and discrimination, not insubordination. As evidence she had been meeting Applebee’s expectations at the time she was terminated, she pointed to the bonus and her disciplinary track record.
The restaurant couldn’t explain how it calculated bonuses and whether they were based on individual or group performance. Plus, the judge thought it suspicious that an exemplary employee would suddenly become insubordinate enough to warrant termination. A jury will decide the case. (Surratt v. Apple Gold, No. 5:11-CV-123, WD NC, 2012)
- Write concrete terms into your policies; don't waffle
- Worry about disciplinary inequities from one supervisor, not every boss
- Tell staff you're monitoring work e-mail so they can't argue it was confidential
- More EEOC investigations take the 'personal' touch
- 'No comment' is best response when reporters call about a firing