Building a case for termination:  This dangerous practice could be viewed as "personnel malpractice"

by Larry Clark

You've finally had enough.  Charles has played his little games too often.  He came in 35 minutes late this morning and when asked for a reason, he replied: "It's no fun getting stuck at a train crossing."  When you asked the location of the railroad crossing, his answer was vague.

You decide it's time to put together documentation that will justify getting rid of Charles.  You give him a writ­ten warning.

There is sometimes a tendency for employers to treat their own policies lightly when an employee commits an act that they can no longer ignore.  Then they discover that, despite earlier infractions, they don't have sufficient documentation to justify a discharge based upon their own written policies.  In their zeal to put together a good case, they begin watch­ing the unruly employee for even the slightest infraction in order to justify a contemplated termination.  Meanwhile, they continue to treat other employees as before, overlooking the same rule violations in other employees that could lead to a warning or discharge of their targeted employee.

This is a risky practice.  If you are frequently confronted with the need to "build" a case for termination, it may be a sign that you are enforcing your policies selectively.  Proper daily application of your policies (including documentation of all warnings, evaluations, suspensions, etc.) should automatically produce suitable records to justify reasonable disciplinary actions, up to and including discharge.

Conversely, selective en­forcement of your standards opens the door to unemployment benefits, discrimination and/or wrong­ful termination lawsuits.  It is also an unfailing prescription for low em­ployee morale.  Condoning the infractions of just one employee creates a weak link in your entire dis­ciplinary process.  When an­other employee is discharged for breach of that same rule, you can be assured that (in the subsequent unemployment and/or discrimination hearing) he will cite your failure to enforce that rule with another employee as proof that he was being singled out.  You can't prove that you gave due process to a separated worker if others were ex­empted from the same rule(s) that cost him his job.

Larry Clark is a principle member of Employer Advocates LLC, and has been in the unemployment cost control industry for 35 years.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.