Honesty key to relations between employer, employee

Alana Roberts

Friday, Nov. 12, 2004 | 10:54 a.m.

The best way to fire an employee is not to mince words.

That's the word from two employment law attorneys who spoke during the Advanced Employment Issues Symposium in Las Vegas on Thursday. As harsh as it may seem, it is the best and most fair way to terminate employees, they said.

"The most common supervisor mistake is conflict avoidance," Mark Schickman, an attorney at the San Francisco office of law firm Perkins Coie LLP, said. "You have to be straight with employees. It's called the halo effect. People don't want to tell the truth about employees," he said.

Schickman said it's important for an employer to give clear reasons why the person is being fired to avoid being sued for discrimination based on age, race, national origin, gender, religion, pregnancy or disability. Those are characteristics protected by Title Seven of the Civil Rights Act.

Schickman said if it isn't clear that the reason the person is being fired is nondiscriminatory, a governmental agency such as the U.S. Equal Employment Opportunity Commission, judges and juries are likely to accept a plaintiff's argument that the reason for the termination was discriminatory. They are also unlikely to believe that a supervisor was too soft-hearted to state the real reason for firing a person, he said.

"You will get punished for it by a jury," Schickman said.

David Nagle, an attorney at the Richmond, Va., office of law firm LeClair Ryan, said there are some exceptions to that rule.

"There are times you many not want to give a full reason," Nagle said. "You never give a false reason."

He said, for example, that managers might want to withhold the true reason for termination if they believe an employee is stealing but there isn't enough evidence to prove it.

Schickman said after the speech that if a company states in the employment policy handbook that employment is at-will, as it is in Nevada and in most states, then a company doesn't have to give a reason -- as long as the company can prove the reason was nondiscriminatory in a lawsuit.

Other big mistakes employers make include failing to establish employment policies, misclassifying the salaried or hourly status of employees, and failing to train managers and employees about company policies and employment laws.

Howard Winters, owner of North Las Vegas-based Payroll Solutions, a company that provides outsourced human resources functions for small and medium-sized businesses in Nevada, noted that many small and medium-size companies lack a human resources function entirely.

"They don't do handbooks, they don't have someone responsible for that, they don't have company policies and procedures for employees, they don't set up proper personnel files, and they don't consider how they're going to comply with federal and state (employment law) requirements," Winters said. "If you take care of that in the first place then hopefully all the other mistakes you'll avoid."