Employers must be more cautious in dealing with potential employment terminations than in deciding upon other employment actions because terminations are, of course, the actions that are most likely to lead to litigation. Plaintiffs’ employment lawyers are much more likely to bring suits arising out of termination decisions than based on other employer actions because of the greater damages that may be obtained and the potential for a receptive jury.
In dealing with potential employee termination situations, employers should keep in mind that the ultimate decision of whether it was proper to fire the employee may be made by a jury of average citizens. Those jurors will engage in “Monday morning quarterbacking” of the employer’s handling of the employee who was fired or laid off, except the jury will not be reviewing the employer’s decision on the proverbial Monday morning following the employer’s action. Instead, the jury will be reviewing the employer’s conduct several years later, with the benefit of hindsight, after the employer’s actions have been inspected under the microscope of discovery and other pre-trial litigation procedures.
An overriding principle that employers should keep in mind while dealing with situations that may lead to a discharge is that jurors...
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