Being disciplined, terminated or laid off can be a traumatic experience. It is traumatic for employees because it involves criticism for not performing acceptably and/or potential financial burdens because the paycheck has ceased to be. It is traumatic for supervisors because it involves guilt for the potential emotional and financial problems suffered by the employee, potential retaliation from the employee and the employee's co-workers, and the possibility of having to defend the decision if the employee should bring a legal claim.
However, employers have an important interest in maintaining an efficient business for everybody who works there. Effective management relies heavily on an employer's ability to find capable employees, to effectively correct those straying from the performance standards, to rid the business of those individuals who are not salvageable, and reduce the workforce when burgeoning personnel costs outflank profit. Planning ahead allows an employer to reply to any claim by showing that there is no legal issue to litigate.
The first line of defense for employers is to determine what potential claims could be brought. Does the employer have a “pure” at-will employment relationship with all employees? Is there any basis for a discrimination claim, under either federal or Michigan law? Title VII protects race, color, religion, and sex (which include gender and pregnancy) and a prohibition of harassment on the basis of any of those characteristics. The Americans with Disabilities Act protects disabilities, both physical and mental. The Age Discrimination in Employment Act protects age (over 40). Michigan’s Elliott Larsen Civil Rights Act protects all of the above, as well as height, weight, and marital status. Elliott Larsen also does not have an age threshold. There are legal protections for employees who engage in union-related activities or other types of concerted action in the workplace. The concept of concerted activity has been used to bring claims based on discipline or discharge due to postings on social media. Finally, it is unlawful to retaliate against an employee because he or she exercised some right protected by a statute or public policy. Retaliation claims are most often based on the Workers’ Disability Compensation Act, civil rights acts, wage and hour statutes, and the Whistleblowers’ Protection Act.
In the course of discipline, layoffs and termination, wise employers keep an eye on the future, understanding that the goal is to be able to show that any reasonable person would have made the same decision under the circumstances existing at that time.