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  • Writer's picturePavan Khoobchandani

Don't Be Shifty When Terminating Employees - Part II

Updated: Mar 2, 2023

I've previously written about why employers shouldn't be shifty (aka should be very honest and up front about all valid termination reasons) when terminating an employee. A recent case argued successfully on appeal by two University of Virginia law students reinforces this advice.

In the case, an employer fired an employee for "job abandonment" after a particular incident. At the time of termination the employee had three "infractions" for poor performance on file, but those weren't given as the reason for termination. Fair enough, right? Maybe those infractions really weren't the reason for termination. The employer's problem, however, arose when it argued in litigation that the poor performance infractions were part of the reason for the termination. The court noted that an employer is absolutely allowed to expand on its original reason for termination in litigation - there's nothing per se wrong with that. But, what those "shifting justifications" did was preclude the employer from being able to get out of the litigation early on summary judgment. Which, of course, means increased legal fees and risk.

So, what's an employer to do? Employers should spend time to really think through terminations and how they are going to occur. In this case, for example, it appears that the employee was told that he was being terminated for "job abandonment," which had a specific definition in the employee handbook (that did not really apply to the situation). The termination paperwork listed "violation of rules" the reason, and then the employer added "poor performance" as a reason in litigation.

Could this result have been avoided? Possibly, had the reasons for termination been thought out and made very clear to the employee.


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