Case study: termination

By Bent Ericksen and Tim Twigg

After terminating a dental assistant for unacceptable work performance, a dentist was sued for $150,000 for wrongful discharge, management malpractice, discrimination, and emotional distress. The practice was located in an "at-will" state and the assistant had been informed that her employment was "at will." But after reviewing the case, the doctor's attorney concluded that the dentist would likely lose, and advised settling rather than going to court.

Many employers think that "at-will" employees can always be terminated at any time, with or without reason. While technically correct, why then did this termination go wrong. The employee had been working for the doctor for three years and had never received a performance review nor had the doctor documented the times he "counseled" her about her performance problems. She claimed that instead of unsatisfactory work, she was fired because of her national origin and age (over 40) and the termination was, therefore, a violation of her civil rights.

While court decisions have restricted the application of the "at-will" doctrine, here are the steps to take to improve your personnel practices and prevent this type of litigation:

1. Ensure that an "at-will" statement is part of your employment application.

2. Include the "at-will" statement in all the appropriate places in your staff personnel manual. Delete all statements that restrict your rights to discharge. Do not state or imply that you will follow a progressive discipline procedure before anyone is let go. Do not make statements such as, "No one will get fired as long as they do their job."

3. Do not use employment terms — orally or in writing — such as: long term, career, probationary, permanent, or tenure in job advertisements or anywhere else.

4. Have well-written job descriptions for each position in the practice. Make sure the job descriptions comply with the requirements of the Americans With Disabilities Act (ADA).

5. Have all staff members read your staff policy manual and sign an employee acknowledgment form. Keep the signed form in the employee's personnel file.

6. Keep employees informed about the quality of their work performance through periodic and documented performance appraisals, using the job description for comparison.

7. Be sure to document (including the staff member's signature) unsatisfactory work performance that is addressed with constructive guidance or discipline.

Good staff-management practices should provide reasonable opportunities for improvement. For example, if poor performance is because of lack of training, provide more training.

Many employers, wanting to be fair, use a warning process — also called progressive discipline — and state this in their policy manuals or through verbal promises to staff. By doing so, they undermine their "at-will" employment policy and set themselves up for costly litigation.

How, then, can you keep the "at-will" policy intact and still use a warning process to inform employees that their job is in jeopardy if performance problems are not corrected?

In your policy manual state the following: "As explained elsewhere in this manual, employment may be discontinued 'at will,' at any time, by either party, with or without cause or advance notice. Therefore, the following disciplinary procedures are advisory and not binding on the employer. At the employer's discretion, the employee may be 1) given a written/oral warning, 2) suspended from duty without pay, or 3) discharged from employment."

Provide clear-cut documentation of unsatisfactory work performance and apply discipline in a fair and impartial manner. A termination for poor performance should never come as a surprise to an employee. Your documentation should note that any future work-performance deficiencies could result in termination. Therefore, if the unsatisfactory job performance persists, the staff member has, in essence, made the choice not to work for the practice. Place all documentation in the person's personnel file and save the file.

Follow the process described above and you are more likely to prevent any employee-related litigation. As a precautionary step, you should contact legal counsel or call our office before you make a final decision to terminate.