Andrew Volin

Sherman Howard
Denver, Colorado
www.ShermanHoward.com
AVolin@ShermanHoward.com
(303) 299-8268

Andy Volin began practicing Labor & Employment Law with Sherman & Howard L.L.C. in its Denver office in 1989. He advises and defends private sector employers and their management in disputes involving employment discrimination, wrongful discharge, and wage and hour law. Lawyers in other firms, both out-of-state and local firms, frequently have Mr. Volin serve as co-counsel to provide employment law representation to their corporate clients, or to represent corporate employees who have been sued as individuals.  Andy is active professionally outside the office as well, serving from 2006-2008 as the Management side co-chair of the Labor and Employment section of the Colorado Bar Association, and teaching Employment Discrimination Law at the University of Denver in 2007-2008. He has been a contributing author to the CBA’s The Practitioner’s Guide to Colorado Employment Law since 2001. Andy is also the President of the Board of Community Housing Services, Inc., a local non-profit agency providing housing related services in the Denver area and throughout the state.

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Employment terminations fall into several categories. Whether the situation involves new hires who didn’t work out, firings for cause or performance issues, or voluntary resignations, terminations often lead to litigation. For each type of termination, there are some common ways employers can make sure they can defend themselves if challenged.

New hires

Employers sometimes need to let go of new or relatively new employees who repeatedly fail to perform expected job functions at an acceptable level.

Take, for example, new workers who repeatedly make simple mistakes. Those workers often challenge their dismissals if they did not know about performance expectations or had no training. They also may sue if they believe the employers did not fairly apply the rules—that is, they know of other employees who did not perform and yet kept their jobs.

The key to defending these kinds of claims is to completely document the training and any failure to meet expectations, while showing that you uniformly applied the rules. That can be a problem if some supervisors enforce the rules differently than others.

Absenteeism

Some terminations occur when employees miss work. Again, documentation is critical. An employer must document that it notified the employee of the attendance policy and the employee failed to comply. The employer also must show that it uniformly applied the policy.

Lawsuits often happen if the absence qualified for protection under the FMLA, the ADA or state law (such as absences for jury duty). Make sure no one uses protected absences as the basis for termination decisions.

Misconduct

Misconduct terminations occur when an employee violates a significant “good conduct” rule by stealing, being insubordinate or committing some other serious offense. An employee in this situation often claims he or she was “found guilty” of the violation based entirely on management’s report to HR.

The employee claims he or she had no opportunity to offer an explanation. It is too late to get the worker’s side after termination. As part of a thorough investigation, prudence calls for getting the employee to provide an explanation before a decision is made. While the investigation progresses, the employer has the legitimate option of placing the employee on a leave of absence.

Suddenly declining performance

One of the most complex and potentially litigious terminations is the “performance-related” type, in which an employee who was previously performing well, no longer is. The employee’s performance actually may be changing—or management’s perception of the employee’s work may have changed. Sometimes it’s both.

For example, a stressful family situation or illness may distract the employee at work, resulting in poor performance. On the other hand, a new supervisor, different job duties or even a different performance evaluation system may lead to a judgment that the employee now is performing poorly.

In these cases, a prudent course of action is to go slow. Include the employee in your discussions about the cause of the decline and look for ways to improve. Be sure to document those discussions. Eventually, something could change for the better.

If it doesn’t, you will want to be able to say you made a reasonable effort to help the employee keep his or her job. The employee also is less likely to feel he or she was unfairly treated.

Employers should try to develop objective evaluation systems that don’t rely solely on any one supervisor’s subjective opinion.

Also, make sure any change in performance perception doesn’t coincide with the employee asserting rights under federal or state employment law—such as filing a sexual harassment suit or requesting FMLA leave.

Resignations

It might seem counterintuitive to expect employment claims when an employee quits rather than being fired, but employees can say they were “constructively discharged.” If the former employee can show that working conditions were so intolerable that a reasonable person would feel there was no alternative but to resign, then the resignation is equivalent to a discharge.

Constructively discharged workers have the same rights as fired workers. So, when an employee quits, it may be tempting to tell him or her, “Good riddance!” But a safer strategy is the opposite: Ask them to reconsider and invite them to come back to work. Doing so may preclude a constructive discharge claim, or at least make it easier to defend.

The dangerous 'no reason' termination

In an employment-at-will state like Colorado, an employer that has done what is necessary to retain its at-will status does not need to have a good reason (or any reason at all) to terminate an employee. However, employers rely on this rule at their peril.

Everyone expects some reasonable explanation for a termination, especially if the employee is a member of any protected class (e.g., race, gender, age, religion, disability). To defend a discrimination claim, the employer must be able to articulate a legitimate, nondiscriminatory reason.

Consider this scenario: A year after the termination, the employee sues. The supervisor who made the decision no longer works for the company. No one documented the rationale for the termination at the time. And now you have to explain to a jury why this employee was fired.

Always have the decision-maker document the reason for the termination!