It's My Story, and I'm Sticking to It!

Most employers dread terminating employees, and with good reason. It is an unpleasant task that may produce verbal altercations, violent threats, and resulting lawsuits. Most employment-related lawsuits come from disgruntled employees who feel they have been treated badly and that consequently the reason for termination must be unlawful.

An employer may be asked several times to explain the reason for termination. A copy of the employee's personnel file may be requested. In Oregon, if a request is made and the employer has the file, the employer must provide access to or a copy of the file to the employee within 45 days of the request. Personnel files often contain a separation statement stating the reason for the termination, i.e., layoff for lack of work, inadequate performance, etc.

When the employee files for unemployment benefits, the employer may be asked to state the reason for the discharge. Employers often give little thought to the reason they state on the form, especially if they don't care whether or not the employee gets benefits. Sometimes "kind" supervisors or business owners will state "laid off" so that the employee will get benefits. But the stated reason will become part of the legal record and must be considered carefully.

Let's take it one step further. Suppose the employee files a claim for discrimination through the Bureau of Labor and Industries (BOLI) or some other administrative agency. BOLI will ask, "Why was the employee terminated?" Generally speaking, employers who become embroiled in an administrative investigation into alleged discrimination may be less sympathetic to the employee's plight and more willing now to state the real reason for termination, i.e., repeated violations of safety rules, threatening behavior toward a coworker, sexual harassment, etc.

BOLI has authority to gather information from the Employment Department to determine the reason for termination. If the reason given is different from the one in the employer's response to BOLI, the employer's credibility will immediately be called into question. The questions then become, "Did you lie to us or to the Employment Department? Why should we believe what you are saying now, when you said something different to the Employment Department and in the personnel file?" Inconsistent reasons mean trouble, and plaintiff's attorneys will search for such inconsistencies when suing employers for employment-related claims.

A federal court in Illinois recently held that giving differing reasons for the termination raised an issue that the employee was terminated for unlawful reasons, not the reasons stated by the employer. This case is consistent with a U.S. Supreme Court case, which held that when an employer's "justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision."

Employers should carefully consider the reason for termination prior to the discharge itself. Determine the reason, tell the employee the reason, reflect the reason in the personnel file, state the reason on the application for unemployment benefits, and stick with that reason on any subsequent inquiries. In difficult cases, employers should consult with their employment lawyer for assistance in articulating the reason for the termination, thus guarding against claims of defamation and making sure that the reason for the discharge really is lawful.

Remember, whatever the reason is, it's your story, and you're sticking to it. Otherwise, a jury may be deciding what the real reason for termination is.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BACK TO TOP | BACK TO ARTICLE INDEX | PRINTER-FRIENDLY PAGE