I. PRELIMINARY INQUIRY

1. Has the employer followed its disciplinary procedures?

2. Is the employee's improper conduct or failure to respond to corrective suggestions documented?

3. Have any representations, either oral or written, been made to the employee about continued employment?

4. Was the employee participating in or urging concerted activity?

5. Is the employee a member of a "protected group"?

6. Is the termination supported by facts? Is the decision: fair; accurate; consistent with policies and treatment of others; timely; and supported by documentation and investigation?

7. What is the effect of the termination upon morale in the department, division, company?

8. Is it the type of termination which might induce employees to seek union representation?

9. What is the effect of the termination on business-related matters?

10. Is the supervisor or appropriate personnel manager aware that:

A) The disciplinary interview should be private and remain confidential?

B) The disciplinary interview should be calm?

C) They should avoid name-calling and unsubstantiated charges of lying, dishonesty, or criminal or immoral behavior?

Yes/No Expanded Legal Checklist

1. Disciplinary Procedures

YesNo Were the corporation's procedures and other customary practices followed before the decision was made to terminate the employee?

YesNo Has the employee received the requisite verbal warnings?

YesNo Written warnings or suspension?

Yes No Expanded Legal Checklist

YesNo Did the employee have fair advance notice of the standards by which his behavior/performance would be judged?

YesNo Did the employee have an opportunity to take constructive corrective action?

YesNo Did the employee have a chance to give his or her side of the story?

2. Sufficiency of Documentation [The law frequently takes the position that "if it isn't documented in writing, it didn't happen."]

YesNo Do the documents demonstrate that the termination is adequately supported by facts?

YesNo Is the termination fair and equitable? For example:

YesNo Would the employee's termination offend "public policy"?

YesNo 1. Terminated for exercising a right, e.g., jury duty, political beliefs, etc?

YesNo 2. Terminated for refusing to participate in any activity which would constitute a violation of the law?

YesNo 3. Terminated to retaliate against employee's reporting any alleged violation (e.g., EEO, OSHA or Worker's Compensation) to authorities?

YesNo Would termination of the employee prevent the vesting of benefits in the immediate foreseeable future?

YesNo 1. Pension or retirement benefits? (e.g., within 1 year)

YesNo 2. Bonuses? (e.g. within 1 month)

YesNo If the employee was accused of dishonesty or serious misconduct, did a fair and honest investigation support the allegations?

YesNo 1. Are any other employees suspects?

YesNo 2. Are the witnesses credible?

Yes/No Expanded Legal Checklist

YesNo 3. Disciplinary action suited to the infraction?

YesNo Is the employee's conduct sufficient to justify termination at this time?

YesNo Are there extenuating circumstances or mitigating factors which justify a lesser penalty?

YesNo Does the employee's prior disciplinary record support termination?

YesNo Consistency: Have other employees engaged in similar conduct been terminated?

YesNo Timeliness: Are both the documentation and the decision to terminate timely?

YesNo Is the decision substantiated with facts rather than merely subjective opinion?

YesNo If the termination is based on results of performance appraisals or evaluations, are they objective and directly related to the job skills?

YesNo Is the articulated reason for the termination the real reason rather than pretext?

YesNo Does the employee have a satisfactory or better job appraisal, work commendations, recent promotions, raises or bonuses which negate the articulated reason for discharge?

3. Representations of Continued Employment.

YesNo Were any representations other than the employee was terminable-at-will made to the employee? (e.g., Was the employee told his job was "secure for life" or "as long as he wanted it" or "as long as the corporation keeps growing"?)

YesNo Are the representations true?

YesNo If representations were made to the employee about continued employment, were there any conditions to continued employment, such as the employee's satisfactory performance?

YesNo Did the employee give up any other employment opportunities based on representations or promises?

Yes No Expanded Legal Checklist

YesNo Was the employee informed that continued employment was dependent upon the corporation's discretion or business needs?

YesNo Was the employee advised that improper conduct or failure to correct actions would result in discharge?

4. Concerted Activity

If any one of the following questions is answered in the affirmative, the worker may be engaged in protected concerted activity:

YesNo 1. Urge safety in the workplace?

YesNo 2. Urge more breaks, higher wages, or any other benefits for employees in addition to himself?

YesNo 3. Urge union support?

YesNo 4. "Come to the aid" of another employee who was being criticized?

5. Protected Groups
Did the employee's protected status adversely affect in any manner whatsoever, the employment decision?

YesNo 1. Race

YesNo 2. Sex, for example:

YesNo General presumptions of weakness of frailty?

YesNo Reproductive concerns?

YesNo Childbearing or childbearing concerns?

YesNo Unwanted sexual advances or harassment?

YesNo 3. Marital status, for example:

Yes/No Expanded Legal Checklist

YesNo Presumption that employee won't want to travel or work a shift because married?

YesNo Presumption that employee is not "responsible" because not married?

YesNo Terminated because of anti-nepotism policy? (If so, is it possible to avoid a supervisory relationship with relative?)

YesNo 4. National origin and ancestry.

YesNo 5. Religion, for example:

YesNo Have reasonable efforts been made to accommodate the employee's religion?

YesNo 6. Age (over 40), for example:

YesNo Generalized presumption that "time is passing him by" or that he is incapable of keeping up with technological innovations?

YesNo Generalized presumptions of weakness or frailty?

YesNo Attempts to cut direct costs by terminating employees with greater benefits and seniority?

YesNo 7. Disability, for example:

YesNo Has the supervisor discussed with the employee possible ways to accommodate the employee in this job?

YesNo Can the employee perform another job with similar pay?

YesNo 8. Veteran or Military Duty Status

YesNo Is the employee being penalized for taking time off to perform military service?

FRANK & BRESLOW
Basic Checklist in Reviewing Termination Decisions

2. PRELIMINARY INQUIRY
3. GENERAL CONSIDERATIONS
EXPANDED LEGAL CHECKLIST
6. Disciplinary Procedures
7. Sufficiency of Documentation [The law frequently takes the position that "If it isn't documented in writing, it didn't happen."]
8. Representations of Continued Employment
9. Concerted Activity
10. Protected Groups