Vagueness in Termination and Documents

By James Ezell

Disciplining and terminating employees can be among the most difficult tasks facing supervisors. No one enjoys calling attention to a coworker for his or her unacceptable behavior and terminating someone can be almost as traumatic for new supervisors as it is for an employee. When the time occurs to issue a warning, you can save yourself a great number of potential headaches later if you’ll take the time to document properly with clear language. And if you do need to terminate someone, tell the employee the reason for the termination.

If you don’t give employees the reason they were discharged, they don’t know what to tell the TWC when they file for unemployment.

At some point, either through being too cautious or by trying to be intentionally vague, school districts started letting people go in what was said to be “in the best interests of the district,” without giving anything more specific. This was a favorite line of attorneys, but the pendulum is swinging back the other way in terms of giving specifics for termination. This intentional vagueness can create some unnecessary confusion, and even lead to more trouble down the line. Why? Because if you don’t give employees the reason they were discharged, they don’t know what to tell the Texas Workforce Commission (TWC) when they file for unemployment. In addition, not telling them the reason leaves former employees to dwell on it, wondering what it really was. This can leave their minds to wander to the worst case scenario. Or, even worse, they could invent one so far from the truth that employers might not have ever realized the employee thought that way. Suddenly, discharging an employee for being tardy too many times, but telling them it was “in the best interest of the district,” can turn into the employee believing they were discriminated against based upon their gender, race, or national origin, which leaves the employer trying to validate its position to a hearing officer for the TWC, or, even more seriously, defending against an EEOC complaint and subsequent lawsuit.

Here’s an example. While reviewing a recent unemployment claim with a school district, they could not understand why the claimant had been granted benefits. The claimant was asked by a TWC investigator, “What was the final incident that led them to terminate you?” She replied that she didn’t know.

It is much harder to later try to explain what you really meant instead of saying it from the beginning.

 She just parroted the language the school district had written on her termination letter, which said, you guessed it, she was being let go “in the best interests of the district.” In fact, she even continued reading what the school wrote her.

She read the letter, which stated: “You are an at-will employee; and in accordance with policy you may be discharged for any reason or no reason, provided that it is not a legally impermissible reason. Therefore, your employment with the district is terminated.”

While that language may all be certainly correct and true, to an aggrieved claimant who has just lost a job, it can sound suspicious, vague, and perhaps even conspiratorial. Further, a claimant can certainly take such vague language and accuse (rightfully or wrongly) an employer from simply using that as a pretext to terminate for an impermissible reason. It is much harder to later try to explain what you really meant instead of saying it from the beginning. When the district responded, they didn’t help the matter much because they stated in their reply, “The claimant is an at-will employee and was terminated for misconduct.”

Now, all that is certainly true, but if you don’t tell the employee why they are being discharged, they can’t tell the TWC. It is far better to get in front of an issue than have it appear later that you are changing your story. 

It easier to defend a lawsuit at a later date if there is clear and consistent documentation leading up to the termination.

It is certainly easier to defend a lawsuit at a later date if there is clear and consistent documentation leading up to the termination. If you terminated someone for attendance issues, say so. And be specific about it, too. Try something like: “The claimant was discharged for five days of no-call, no show.” This goes for most any situation, whether it is absenteeism, negotiated settlements of resignation, improper educator relationships with students, rude Facebook postings, or whatever else it is. The bottom line is that a district, as an employer, can and should explain exactly why it discharged an employee.

This should apply equally to any documentation prior to termination. If you are writing up an employee for using vulgar language, you should write out what they said. For example, if the employee is being counseled for profanity, write out the offending phrase so there is no confusion later on.

While that may seem a little over the top, you are making a record of what was said. Accuracy is important in documentation, whether it’s salty language, unpleasant facts, or a simple no-call, no show situation.

Remember, the burden is on the employer to prove that you discharged an employee for misconduct. Clear language can always pay dividends later by denying an unemployment claim and even avoiding lawsuits. If you have questions regarding employees who have filed for unemployment, please contact James Ezell, Attorney for the TASB Risk Management Fund Unemployment Compensation program, at 800.482.7276, ext. 6258.