Employment litigation is one of the fastest growing sectors of litigation. Colleges and universities not only educate their students, but have also done a good deed by educating workers about their rights; unfortunately, the latter can sometimes result in more claims. Further complicating matters for institutions of higher education is the fact that they commonly have multiple classifications of employees (e.g., adjunct instructors, tenured faculty, administrators, staff, student workers, coaches, etc.), which can present additional challenges when handling a termination.
Approximately one out of five lawsuits nationwide is filed by a current or former employee. Among the employment cases, retaliation claims specifically continue to grow. In a retaliation claim, the focus shifts to how the college or university reacted to an employee complaint, and away from the original complaint itself.
So, if you are terminating an employee, make sure you follow some basic points:
- Have proper and specific (not generalized) documentation of performance problems;
- If the employee has lodged a complaint, ensure you’ve conducted and documented a full and complete investigation;
- During an investigation, speak with and obtain signed statements from co-employees—don’t make legal conclusions based on assumptions or speculation;
- Be thorough and consistent; and
- Have and articulate a valid legal basis for the discharge.
After the termination, if litigation is reasonably anticipated consider issuing a Legal Hold notice at the earliest opportunity to preserve all records and documents and put relevant employees at your school on notice that they must preserve records and keep those records secure. Do not forget to communicate with the IT department to ensure the Legal Hold is effective.
Also, DO NOT alter or destroy any records in the employee’s file because you do not want a spoliation claim, which could become worse than defending the employee’s initial complaint.