Although “you’re fired” has become part of the entertainment world’s vernacular, terminating employees remains a very serious business. Even in a state like Florida—where the law purportedly allows employers to fire employees “at will” (that is, for any or even no reason)—businesses can incur substantial expenses and be exposed to significant potential or actual liability if appropriate termination procedures and policies are not in place.

For example, Florida and federal statutes prohibit employers with 15 or more employees from discriminating against prospective and existing employees for various immutable characteristics, including race, religion, national origin, gender, age, and disability. In addition, employees can often assert that they are entitled to protection under “whistleblower” statutes by claiming they opposed or refused to participate in practices that violated rules, regulations, or laws. Thus, even in an at-will state like Florida, when employers fires employees, it is not unusual for terminated workers to claim they were fired in violation of their legal rights.

It is often said (probably because it is true) that in America, no one can prevent another person from filing a lawsuit. However, there are several important policies employers can implement to enhance their legal defenses if sued in the future.

Comply With Applicable Laws

This should be obvious. If you have a diverse workforce and comply with applicable laws, you can significantly reduce the likelihood of claims being successfully pursued against your business. The law, however, is very complicated, and you may inadvertently fail to comply with legal requirements that you did not even know existed. Among the areas where employers often are surprised to learn they have legal exposure are wage and hour laws regarding overtime pay and compliance with the Americans With Disabilities Act’s “reasonable accommodations” standards.

Establish Company Policies and Procedures

All employers should have written policies and procedures to insure that employee work issues are promptly brought to the employer’s attention and properly investigated, documented, and resolved. Many employers collect their policies and procedures in an employee handbook. Regardless of the form in which they exist, written policies and procedures must be communicated to employees to provide clear notice of the policies and the steps that should be taken if the employee has concerns that need to be brought to the employer’s attention. Records should be maintained that establish that all employees have received and reviewed the employer’s policies.

Document Shortcomings in Performance

Preparing and maintaining accurate records regarding employee performance, including shortcomings, can be very time consuming. The pressures of the business day and the need to take care of the customer often push employment-related paperwork to the bottom of the employer’s to-do list. But maintaining contemporaneously created records establishing weaknesses in employee performance and confirming that the employer notified the employee about the issue can greatly assist an employer defending against a subsequent discrimination or whistleblower complaint. Providing employees with regular reviews that objectively evaluate the workers’ abilities to perform the essential functions of their positions not only gives employers a vehicle to communicate with workers about their strengths and weaknesses, but can subsequently help substantiate that legitimate business reasons support an employer’s decision to deny a promotion or raise or to demote or terminate an employee.

Enforce Company Policies

The existence of a policy by itself is not a legal defense to an employee claim. When confronted with a situation that potentially or actually violates an employee’s legal rights, an employer is expected by the law to reasonably respond and appropriately address the issue. At a minimum this initially requires the employer to thoroughly investigate the complaint and document the steps taken and the information obtained. Ideally the employer implements a reasonable response that solves the problem so the issue does not have to be addressed again. Unfortunately not all employer-imposed remedies, whether or not they are reasonable, resolve all employee-raised complaints and issues. Unresolved employee complaints regarding employment conditions all too often can become the subject of administrative agency complaints and subsequently litigated matters.

Don’t Retaliate

Sometimes when employees are aware that complaints about their job performance exist, they may raise discrimination complaints against the pertinent supervisor. By raising a discrimination issue, the employee can subsequently claim that any adverse action the employer takes against him or her was retaliation because the employee made a discrimination complaint. There have been reported cases where employees have prevailed in employment lawsuits when the employee could not prove unlawful discrimination but did establish that the employer illegally retaliated against the employee for raising the discrimination issue. Once an employee makes an internal discrimination complaint, an employer must be certain that any grounds on which any subsequent adverse employment action will be based are sufficiently compelling and documented so that a subsequent retaliation claim can be defended.

Independent Investigations Work

Employers should make sure that the person conducting the investigation and making the final decisions regarding employee complaints is not the person about whom the employee is complaining. Employers who conduct an independent investigation of the employee’s complaints, including meeting with the employee and any witnesses identified by the employee, before deciding what action should be taken can raise an affirmative defense to a subsequent discrimination complaint. If, however, the employer solely relies on input from the person who is the subject of an employee complaint for information on which an employment decision will be based, the employer can be held liable if a fact finder subsequently rules that the person who provided the information was motivated by illegal
discriminatory factors.

Utilize Legal Counsel

There are numerous other actions employers can take to enhance risk management and reduce employment-liability exposure. Having legal counsel review existing policies and procedures and participating in supervisor training may help employers avoid or reduce the substantial costs typically incurred in dealing with employment discrimination complaints.

Larry Corman is a partner in the Firm’s Business Litigation Practice Group and concentrates his practice in matters involving employment discrimination, commercial litigation, deceptive trade practices, trade secrets, and covenants not to compete. He is a member of the board of directors of the South Palm Beach County Bar Association and has been a member of The Florida Bar since 1983. He may be reached at lcorman@hodgsonruss.com.