National Clothesline

ast week, one of my clients asked if it was fair to say that an employee was “discharged” when his job was eliminated. The term “discharge” suggests misconduct, or so he argued, and he did not want to rile up the employee any more than necessary in a letter I was sending to the employee’s lawyer. “Permanently laid off” sounded so much nicer.

So, I relented, and I changed the tone of the letter. No problem there; I was still telling the truth. But what if the employee had actually engaged in misconduct, and the employer called the termination a “layoff” instead of a “firing” to avoid an unpleasant confrontation with the employee?

It happens all the time. Employers big and small try to soften the blow of an employee discharge all the time by fudging the real reason for the termination.

That’s a big mistake. Here’s why.

The employer has now opened the door for the unfair accusation that he is a liar. The lawyer representing the employee now has a basis for questioning the real reasons for the discharge, and even suggest to the judge or jury that the lie was told to cover up the real reason: unlawful discrimination. The employer then has to convince the court that he did, in fact, misstate the reasons for termination only to make the employee feel better about getting the boot. It can be done, but why risk it?

It is absolutely essential that employers tell the truth when taking any disciplinary action against their employees. The words can be chosen with care, but the truth cannot be lost in the process.

“John, we are firing you for mishandling cash receipts and the consistent shortages in your cash register” is fine, even though what you truly want to say is: “John, we’re firing you because you’re a thief.”

But if you catch John putting cash from the register in his sock, tell him that he is being fired for theft while the police take him away in handcuffs.

While there is no legal obligation to tell an employee the reason for termination, it is a good idea to do so. Again, while it may make an employee less confrontational if he is not criticized during the discharge conference, it allows unscrupulous lawyers to argue that you are hiding something. It is maddening, but it is a fact of litigation.

The truth also needs to be told during employee evaluations. Years of good evaluations make it doubly difficult to fire an employee for performance problems that come up later. Make sure the employee, fired for chronic mistakes, cannot produce five annual evaluations saying that he is an “outstanding” employee.

The truth is also your friend when responding to requests for separation information from the unemployment insurance people. Tell the story why the person was fired, and allow the agency to conclude that it was misconduct.

For example, “John was warned on January 3, 6, 8, 10, and 12 that he had to check the temperature on the pressing machine. He did not, and on each occasion, several shirts were destroyed. On January 16, he failed to check the temperature, destroyed a $125 shirt, and he was discharged.”

Since incompetence is not a disqualifying factor for unemployment insurance benefits, but misconduct is, you have a better chance of preventing benefits than if you say: “Incompetence.”

Every employee fired or laid off must be viewed as a potential litigant, so keep that in mind when giving the reasons for termination. Lawyers will try to twist whatever reason is given, so the truth generally works best. Being compassionate may seem appropriate, but sugarcoating the reason does not benefit employers in the long

Frank Kollman is a partner in the law firm of Kollman & Saucier, PA, in Baltimore, MD. He can be reached by phone at (410) 727-4300 or fax (410) 727-4391. His firm’s web site at www.kollmanlaw.com has articles, sample policies, news and other information on employee/employer relations.