Do you get frustrated when someone tells you that you can't fire an employee?  If you’re responsible for the Human Resources (HR) function in your organization, do you get frustrated when a manager tells you they're going to fire someone and they haven't talked with you about employee's conduct before making the decision?  Neither of you are alone.

The frustration you feel is because of lack of communication.  The person responsible for HR may not have shared the reasons why you want documented warnings in someone's file before deciding to fire them. And the person responsible for HR is taken by surprise that a problem even existed that they may have been able to help with before it got to the point of termination.

As a manager, you need to understand there are many laws that protect employees.  Even though discriminating against this individual is the furthest thing from your mind, if you go from saying nothing to termination, that person is going to think that you fired him or her because of a discriminatory reason.

Let's talk about how that may manifest itself.  You have an employee who's been a marginal performer and is frequently absent. However, you've always given that person satisfactory/average performance reviews but have never formally documented their frequent absences, missed deadlines, or whatever other issue may have happened. That person happens to get injured on the job (workers' compensation injury) and is eligible for leave under the Family & Medical Leave Act, which runs concurrently with his workers' compensation absence. Within a week of returning to light duty work, the individual calls out because his car has broken down.  That just happens to be the straw that breaks the camel's back for you and you fire him.

That's when the person responsible for HR begins to panic.  Because of the lack of documentation of his frequent absences prior to is workers’ comp/FMLA leave, there is now going to be a perception on the employee’s part that he was fired because he filed a workers' compensation claim, took leave under FMLA, and because he was restored to light duty work that you perceive him as disabled.

At that point, all the employee has to do is call that friendly attorney who advertises on TV and tell him how he was wrongfully terminated.  It's highly likely the attorney will take the case and will file charges against the company for retaliation under both workers’ comp law and FMLA.  It’s also likely the attorney will file a claim of discrimination alleging the employee was perceived as disabled and terminated for that reason in violation of the Americans with Disabilities Act.

It's been said that the typical cost to defend a lawsuit that is settled out of court is around $50,000.  If the lawsuit goes to court, then it can easily cost the company $200,000 or more in attorneys' fees....IF the company wins the case.

Wow...who knew that firing someone for absenteeism could have such ramifications?

So where does the fault lay in this situation?  With the manager who terminated the employee without first consulting with their HR guru?  Or with the HR guru who didn't educate he manager about how employment laws affect their decisions?

The answer is both are guilty of not communicating with each other.  So what should companies do?

1.  Train supervisors and managers -- including the executive suite -- on employment laws and how their decisions can affect the bottom line of the organization.

2. Draft comprehensive policies that employees are expected to follow and more detailed procedures that can be given to supervisors/managers to review before taking action.

3. Talk with each other.  The relationship between HR and supervisors/managers can sometimes appear adversarial. That's not the way I should be.  You are both on the same team advocating for what is right for the business.

4. If you have a problem with an employee, discuss it with them immediately. If the conduct doesn't stop, discuss the situation with your HR guru and immediately begin formal documentation.  Even if it is a formal verbal warning, you want to document the conversation in writing and ask the employee to sign off on it.

5. Document! Document! Document! This is the mantra of every employment law attorney and HR professional.  The lack of written documentation of the events that led to termination makes it difficult for an attorney to defend your actions. There is truth in the statement that “if it’s not in writing, it didn’t happen”.

Whether you are the manager making the decision to terminate an employee or the HR professional who has to manage the ramifications of that decision, it is imperative that you discuss the situation with each other before taking that final step to ensure the reasons for the decision are well-documented and sound.

Contributed by the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here to learn more about EAF membership benefits http://eafinc.org/about-eaf/value-of-membership/.