Discipline and termination should always be well-documented, but how exactly? Adam Rosenthal, an attorney with Sheppard Mullin in San Diego and Los Angeles, provided some tips on such documentation during a June 14 concurrent session at the SHRM Annual Conference & Expo 2022 in New Orleans.
Disciplinary issues became particularly acute during the pandemic, according to one school administrator from Texas attending the session, called “The Art of Disciplining, Separating and Laying Off Employees: Ethical Considerations and Effective Strategies for HR Professionals and In-House Attorneys in Workplace Investigations and When Making Difficult Personnel Decisions.” She told SHRM Conference Today that some teachers refused to wear masks or they let their students not wear masks, despite school rules. These acts rose to the level of insubordination, and discipline had to be considered, she noted.
Documentation
Five things every disciplinary documentation should include, according to Rosenthal, are:
- Evidence that prior to the write-up, the employee knew the employer’s expectations.
- Evidence that the employer’s expectations were appropriate, lawful and consistent with the job duties and business needs.
- Evidence that the employee did not meet the employer’s expectations.
- A clear statement of the employer’s expectations going forward.
- A clear statement regarding the consequences of failing to meet the employer’s expectations.
The first of these is particularly important, Rosenthal emphasized.
He noted that as a general precaution, even in at-will states, the decision to terminate should be:
- Based on legitimate business reasons.
- Supported by ample documentation.
- Consistent with the employer’s policies.
- Conducted in good faith.
- Made for good cause (not “for cause”), which means for a fair and honest reason, regulated by good faith, that is not trivial, arbitrary, capricious, unrelated to the business needs or goals, or pretextual.
The employer should provide a termination letter, not a form, to an employee who is being discharged and specify the reason why the person is being fired, Rosenthal recommended. Avoid a laundry list of reasons why the person is being let go. That can backfire, he cautioned.
Managers often are reluctant to fire employees, he noted. Managers often want to be liked, may not know how to discipline employees or fear being accused of unlawful retaliation. All in all, it’s just hard to terminate workers, Rosenthal noted.
Attorneys’ Role
When a worker needs to be disciplined or fired, employers don’t always go running to legal counsel for advice, nor should they, Rosenthal said. It’s more appropriate for HR to seek attorneys’ input when another attorney has contacted them or the legal issues aren’t clear, he noted.
Not all complaints are equally serious, but there should be some formal investigation of all of them, he said. Otherwise, plaintiffs’ attorneys may ask why a formal investigation wasn’t conducted.
Lawyers often lead investigations, but they rarely make the final employment decisions at the investigations’ end. That typically should be the managers’ call, he said.
Attorney-Client Privilege
In order for attorney-client privilege to apply, HR needs to ask legal counsel for input on a legal question. If the lawyer addresses only business decisions without answering any legal questions, the privilege won’t apply.
This privilege is important because if litigation ensues, the other side can’t access certain information discussed between HR and the attorney.
However, just because HR labels some communications privileged doesn’t mean the privilege can’t be waived. For example, the privilege could be waived if HR has a conversation with someone—other than the attorney—who has no need to know about the privileged information
Once waived, the privilege typically can’t be restored. That’s a great loss, because attorney-client privilege facilitates open lines of communication between HR and the lawyer, which helps the lawyer provide the best legal advice, Rosenthal noted.
When the Investigator Is an Attorney
Rosenthal also provided information for when the workplace investigator is an attorney.
In this circumstance, the attorney needs to tell the employee that the attorney is gathering facts to provide legal advice to the company and that the attorney represents the company, not the employee personally—the so-called Upjohn warning.
The attorney also should explain that for a discussion to be subject to the privilege, it must be kept in confidence. The employee participating in the investigation should be told that except for their own attorney, they may not disclose the substance of the interview to any third party, including other employees or anyone outside the company.
The lawyer also should say that this notice has been provided to every employee interviewed as part of the investigation.
Exit Interviews
Corporate attorneys sometimes want to be present at exit interviews.
If they are present, they must provide the Upjohn warning, Rosenthal said. In addition, the attorneys might have to be a witness should litigation ensue.
