Blog Category

Performance Management

Mitigating Wrongful Termination Lawsuits

Author: Ron Hiller l Published Date 9/2014


Insurance companies report that wrongful termination lawsuits are on the rise—and they are the single most frequent labor claim. Even though most employment in the US is considered "at will," wrongful employment termination claims have spiked mainly because of a faltering economy and employees having a better understanding of wrongful termination law.

There are more than 20 legal grounds for making a claim for wrongful termination such as discrimination and whistle blower retaliation but an employer’s performance management practice may also provide fertile ground for a potential lawsuit.

Over 50 percent of all wrongful termination cases are won by the former employee. Clearly, "at-will" employment doesn't mean that an employee has no legal rights if their employment is terminated. (Read More Starts Here)

If charged with wrongful termination it is vital that the employer prove the dismissal was business-related. Managers who neglect to document policy violations and poor performance make it challenging to support the company's defense.

TalentPeak’s™ secure online accessibility provides managers with an intuitive systematic approach to set expectations, track and document employee performance and progress 24x365. TalentPeak™ mitigates “wrongful termination lawsuits” by giving employers detailed employee performance data. In addition to the many custom reports that the system generates 5 of its many features are notable for thwarting wrongful dismissal claims.

Those 5 features are listed below:

1. Performance Improvement Plan or PIP: These special reviews are designed to fix performance gaps and are available for the manager/HR to use and they come with an optional multi rater feedback capability. A custom PIP review can be launched in minutes and if desired the manager/HR can invite up to 5 other co-workers/managers to provide their feedback. This tool can be used as a before and after intervention tool to objectively measure an employee’s remedial efforts to improve performance and is an invaluable defense against a wrongful termination lawsuit.  
2. Performance Record Notes:  These notes are a time stamped record of a manager’s objective and factual notes about the employee’s performance which can be used to document and validate the manager’s attempts to correct or fix an employee’s performance gaps. These notes can be optionally shared with the employee.

3. Agree and Acceptance Feature: The manager can edit the employee’s performance agreement which contains job specific goals, competencies, objectives and behavioral expectations. The manager can request the employee to agree and accept the agreement electronically.  The electronic back and forth agree and accept process is tracked and time stamped by the system which also produces a completion report for management. The manager can unlock the agreement and edit the agreement as the needs of the job change and resubmit to the employee for their time stamped electronic acceptance.  The system manages the entire agree and acceptance process and produces a real time completion status report. This feature mitigates an employee’s claim that they were oblivious to what was expected of them.

4. Forced Comments Feature: Activating this feature requires the manager to justify low rating scores with comments and suggestions for improving performance.  These low score comments are compiled into a comprehensive Performance Optimization Plan report which management can access and monitor by employee or team.  This report identifies performance gaps which facilitates a company’s defense that the employee’s termination was justified and termination was based on poor performance factors that were identified, documented and shared in the context of the employee's performance review.

5. Language Sensitivity Filter:  An employee review containing a manager’s emotionally laden rhetoric will benefit the employee in a wrongful termination case. A manager or supervisor can easily add inappropriate comments when documenting violations such as wrongful conduct, intoxication or drugs, tardiness, unsatisfactory work quality, or violation of safety rules. TalentPeak’s language sensitivity filter contains copious inappropriate words and phrases that alerts the manager as they are typing their comments. This alert requires the manager to edit their word or phrase selection before being allowed to proceed.  This library of inappropriate words and phrases can be augmented and edited by the company as needed.

Summary: A policy hand book accompanied with verbal testimony is a weak defense against a wrongful termination lawsuit. Employers that are armed with a current and accurate job descriptions, backed up with an unambiguous signed performance agreement and documented performance notes and data will go a long way toward making their business case for an employee's dismissal. TalentPeak™ is the gift an organization gives to itself, its managers, and shareholders because it provides a systematized approach to setting employee expectations, providing timely feedback, and tracking progress.

Email Address:

Expert Author Alerts




Performance  Management   (Blog)  

Goal Management  (Blog)

Learning Management  (Blog)

360 Feedback  (Blog)

Recruitment   (Blog)

Leadership & Coaching   (Blog)

HR Challenges   (Blog)

Talent Management & Succession Planning (soon)