Making Your Termination Decision Count (Don't Sleep on This One…)

17 March 2014 Labor & Employment Law Perspectives Blog

The success or failure of an employer’s defenses in employment litigation often turns on what motivated a termination decision. My consistently subpar performance or my complaint about harassment? My taking of leave or requesting of accommodation, or the ongoing business struggles making it necessary to cut costs? As a consequence, the timing of a challenged decision and decision-maker identity become key issues; if the decision occurs prior to protected activity and/or is made by someone with no knowledge of that activity, logically it could not have factored into the termination decision. These are the kinds of critical facts an employer would want to have to defeat discrimination or retaliation claims.

A serious problem occurs however, as illustrated by a recent case, when a termination decision prior to protected activity does not actually count as a termination decision, and then the actual act of termination occurs on the non-insulated side of protected activity. In the decision, the former employer argued it initiated the termination process for an employee repeatedly caught sleeping on the job and later diagnosed as narcoleptic, before she put the company on potential notice of a need to engage in the interactive process. The employer initially prevailed based on the fact that a human resource manager had recommended termination prior to the employer receiving notice that medical circumstances might be causing the employee’s narcoleptic bouts.

However, the United States Court of Appeals for the Seventh Circuit overturned that win, finding that while the employer may have begun considering termination prior to interjection of a potential disability, it had not manifested a “clear intention” to terminate until after having sufficient notice the employee may have a disability. As part of that analysis, the appellate court articulated an “unequivocal notice of termination” test requiring a “final, ultimate, non-tentative decision to terminate the employee” and “unequivocal notice” to the employee of the termination decision. Though the Court’s subsequent comments appear to soften the “unequivocal notice” to the employee requirement, the opinion makes clear that the absence of a clear manifestation of intent to terminate until after the employee had provided information to potentially require an interactive process raised questions about the employer’s motive for termination.

Employers commonly make concrete termination decisions but delay effectuating them for a number of practical reasons. They may require time to arrange for coverage of the employee’s responsibilities, or the termination may occur as part of a series where the sequence of employee notifications requires careful handling. These are legitimate business imperatives and we do not suggest, nor do we believe the Seventh Circuit suggests, that employers should discontinue using such practical considerations as part of the overall termination process, notwithstanding the Seventh Circuit’s “unequivocal notice” language. Courts will likely continue to understand that practical reasons for a delay in effectuating an already-made termination decision do not equate to a discriminatory or retaliatory motive, as even the Seventh Circuit has observed in recent decisions. The linchpin factor though is establishing the clear intention to terminate. The key takeaway from the recent case then is, if a decision to terminate has been made, the employer should immediately document the fact of that decision and the identity of the decision-maker rather than – if you will excuse the pun – falling asleep at the switch and later having the timing and motivation behind a termination decision called into question. Just as we constantly exhort managers and supervisors to document performance problems, it should be equally important to document the timing of disciplinary and termination decisions independent of the timing of delivery of the actual discipline to the employee.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Do You Know What IMMEX Stands For?
16 July 2019
Dashboard Insights
Does The U.S. Need STRONGER Patents?
16 July 2019
PTAB Trial Insights
California Establishes Fund to Combat Wildfire Threats
15 July 2019
Renewable Energy Outlook
There’s No Place Like Home – But Is That a Reasonable Accommodation?
15 July 2019
Labor & Employment Law Perspectives
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
2019 NDI Executive Exchange
14-15 November 2019
Chicago, IL
MAGI’s Clinical Research Conference
29 October 2019
Las Vegas, NV
Association for Corporate Counsel Annual Meeting 2019
27-30 October 2019
Phoenix, AZ