• A company can avoid worker claims by conducting employee terminations lawfully and with business justification.

Ensuring that terminations are conducted lawfully and with business justification in cases where employees otherwise might be protected is the best way to avoid claims. A wrongful termination claim can be costly and time-consuming, even if the company wins the case. Although employers cannot stop employees from filing claims, employers can take steps that may prevent employees from doing so.

First, treat the employee with respect throughout the discipline and termination process. There is no reason to ridicule or demean the employee. Doing so will only create anger or resentment. These emotions can encourage the employee to “get back” at the employer, and the employee may file a claim (even if the claim has no grounds) just to do so. Consider how a company would want to be treated in the same situation if the tables were turned.

Second, follow company policies consistently. Treating employees differently, or applying different levels of discipline for similar offenses under the same or similar circumstances, can lead to feelings of unfairness and build negative emotions. An investigator or judge also may infer from such differential treatment that the employer had a discriminatory or otherwise unlawful motive.

Consistent enforcement is critical because if a termination is challenged, courts will likely require that an employer do more than point to employee misconduct. The company must show that the employee would have been terminated for that misconduct. If the policy had been ignored in the past, the company will have a greater burden in showing that the misconduct (and not some other, potentially discriminatory reason) was used to justify the termination.

Finally, handle discipline and terminations in private. In most cases, a second neutral party (such as a representative from human resources) should be present during a discipline or termination hearing. In no case should such a hearing be conducted in the presence of co-workers.