5.10 Practical Guidelines for Advising Employers on S severing the Employment Relationship

• Library: Virginia Employment Practices and Forms (Virginia CLE) (2015 Ed.)

5.10 PRACTICAL GUIDELINES FOR ADVISING EMPLOYERS ON SEVERING THE EMPLOYMENT RELATIONSHIP

With the rampant rise in employment cases, attorneys increasingly are required to advise employers on termination decisions. In undertaking this responsibility, wise counsel should ask employer clients the following questions to reduce or eliminate the risk now associated with termination decisions:

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1. Has the employer followed its own policies and procedures regarding discipline and termination? Although most employment handbooks disclaim their contractual status and thus arguably cannot be used as the basis for a breach of contract claim, an employer that does not follow its own policies runs the risk of a discrimination action.

2. If the decision is based on performance, has the employer provided the employee with counseling, warnings, and notice that the employee is not performing up to expected standards, and the consequences of continued failure to perform? We live in a very due process-oriented society. There is a general expectation that an employee will not be terminated for poor performance until the employee has been put on notice that his or her performance is considered deficient and that the failure to improve may result in termination.

3. Does the employer have any other past or present employees similarly situated to the employee whose employment is about to be separated? Are other employees performing at the same substandard level,...