Check job applications when facing claims
As with most risk management issues, some employment problems can be prevented, but others still will demand attention afterward. The following advice for handling employment claims is from John Lyncheski, JD, an attorney with Cohen & Grigsby in Pittsburgh:
1. Check for supporting information in the job application.
The very first thing to do after an employment claim is filed is to check the job application with a fine-toothed comb, he says. Almost any job application plainly says that any falsehood, misleading statement, or material omission is reason for immediate dismissal, no matter when discovered. If you find that the employee lied or withheld information on the job application, you can use that as a trump card to end the lawsuit in many cases.
If you discover irregularities in a job application of an employee who is suing for wrongful termination, consider a second, separate termination action against the employee. That second "firing" is likely to stick and at least will end the employee’s claim on earnings past that point.
2. Do criminal record checks.
These are a must in health care employment, Lyncheski says.
3. Tell the person why he or she is being fired.
Many human resources professionals advise managers to avoid any direct criticism of the employee’s performance and to say something general instead, like "Your services are no longer required." The theory is that providing a specific reason provides the fired employee with ammunition for a lawsuit.
"I absolutely, wholeheartedly disagree," says Lyncheski. "You need to give them a cogent reason or they will go straight to an attorney. They will be suspicious, and the jury will be suspicious."
4. Do not surprise employees with their firing.
If a dismissal is legitimate, the supervisor should have alerted the employee that dismissal was possible or even imminent. Avoid any method that surprises the employee, even though some supervisors think that is a better approach because it can prevent the employee from sabotaging work or taking other adverse action in the workplace. From a risk management perspective, a surprise firing is like just begging for a lawsuit.
"Surprised employees are vindictive, and vindictive employees sue," Lyncheski says.
5. Do not fire someone on a Friday at 5 p.m.
Again, this is a practice that some supervisors mistakenly believe will make the dismissal easier. Actually, it can exacerbate any feelings of resentment.
"The fired employee won’t be able to talk with anyone in human resources to explore what options are available and how the dismissal will be handled," he says. "Instead, they will stew and get angry and suspicious before they can talk to anyone again. By Monday, they might decide to call a lawyer instead of human resources."
Sources
o John Lyncheski, Cohen & Grigsby, 2900 CNG Tower, 625 Liberty, Pittsburgh, PA 15222. Telephone: (412) 394-4900. E-mail: [email protected].
o Michael Barton, Corporate Vice President of Human Resources, Regional Medical Center, 900 Hospital Drive, Madisonville, KY 42431. Telephone: (502) 825-5100.
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