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1. FEATURE STORY:
HONESTY REALLY IS THE BEST TERMINATION POLICY

Making a poor decision is not illegal. Courts have held time and time again that they do not sit as "super-personnel departments" and judge whether the decision to fire an employee was a good, right, or smart one. They really don't care if you make a bad, wrong, or dumb decision. What they do care about is whether the decision is discriminatory or retaliatory. If you make a questionable termination decision, you'd better have an honest and reasonable belief in the reason behind it.

Courts allow what is traditionally known as the honest-belief defense. In short, an employer can show that it did not discriminate or retaliate against an employee when it fired him/her by asserting that it had an honest, albeit mistaken, belief in the validity of the decision. That's all it usually takes to defeat a discrimination or retaliation claim: So long as you honestly believe in the reason, the employee cannot prove pretext, even if the reason is shown in the end to be "mistaken, foolish, trivial, or baseless" (according to the 7th Circuit Court of Appeals).

However, that might not be enough. At least one other circuit court (the 6th) has added that an employer's honest belief must be reasonably based on particularized facts that were available to it at the time the decision was made. In the case before the 6th Circuit, an employee was fired for being a no-call/no-show for three consecutive days after a doctor cleared him to return to work. The employee claimed he had missed only two days and that the company fired him in retaliation for filing a discrimination charge.

According to the court, the employer did not establish a reasonable reliance on the facts at hand. Fact was, the doctor had released the employee to return to work the afternoon of September 24, so the first full day he was available for work was September 25; the employer sent a termination letter dated September 26. While the employee has not won his claim, he did at least win his day in court.

Employment at-will allows you to fire an employee without having a good reason, but that doesn't mean you should press your legal luck. It's best to have reasonable evidence supporting your honest belief that terminating the employee was appropriate.

Finally, don't put a chink in your own legal armor by gathering the evidence and then failing to be honest with the employee. It may seem easier to sugarcoat the reason in order to spare the employee's feelings or to spare yourself from a nasty confrontation. Lying will raise suspicions of illegal intent and make it harder for you to prove that you acted legally.

The termination process is fraught with legal danger, no matter how honest you are with employees. Get a free report on the 10 biggest mistakes that can turn an employee termination into an employee lawsuit.

2. CATHIE'S CORNER:
DON'T LET THE TAIL WAG THE DOG

Last week, I had a conversation with a new-to-the-profession HR manager. She had an exempt employee who wanted to take four weeks off in the next month or so, and another four weeks later in the year. He did not want to use his vacation time, despite the fact that the purpose of the time off was to visit his new vacation home. His plan was to work approximately 10-15 hours a week.

The HR manager wanted to know whether the best way to handle the situation was to make him non-exempt, since the company did not have a policy that addressed the issue of vacation time usage during an extended leave of absence.

All I could think of was what a sweet deal this employee had carved out for himself, if he were able to get away with it. By working a few hours a day (I somehow doubted that he intended to work a 10-hour day one day a week and then not work the other four), he would have to be paid for the full workweek, since an exempt employee cannot be docked for partial-day increments. He didn't want to use his vacation time for it, so, in his view, he'd be getting four weeks now, and another four weeks later, of paid time off for doing minimal work and still have his vacation time intact.

And what if my inexperienced friend reclassified him as a non-exempt employee? Although he wouldn't get paid for the time off, he'd be getting overtime when he returned to work. The Labor Department takes a dim view of changing status from exempt to non-exempt and back again to suit the circumstances. Changing him to non-exempt to avoid paying salary and then changing him back to exempt when he returned to avoid paying overtime would not pass muster with the agency. The HR manager would have to make the reclassification to non-exempt a permanent change, which would solve the immediate problem, but would be a pretty long-term fix for a short-term issue. And sooner or later, some of the other employees in similar positions would want to know how come one privileged employee was getting paid overtime when they were not.

My suggestion to her: Stop letting the tail wag the dog. Just because the employee doesn't want to use his vacation, doesn't mean he can't be required to. Just because he wants to work enough hours every day as an exempt to make payment required even after he runs out of vacation, doesn't mean he must be permitted to. For that matter, he doesn't even have to be allowed to take the extra time in the first place. Nowhere is it written that, in the absence of a policy that specifically addresses a situation, the employee gets to have it all his own way.

It's all well and good to be considerate of your employees and their lives outside of work. Normally, I encourage that. If the employee had a personal emergency and needed time off that didn't fall under the Family and Medical Leave Act (FMLA) and didn't have enough vacation time to deal with it, I'd have given my friend somewhat different answers. It would still be questionable to change him to non-exempt, but if there were a real necessity for some time off, surely we could have come up with some solution. But that was not the case here. An employee had figured out a way to get what was essentially eight weeks of additional paid vacation time for doing minimal work, and thought he could intimidate a new and inexperienced manager into giving it to him.

Being considerate of your employees is one thing. Letting an employee take advantage is another.

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

THE GREAT RELIGIOUS ACCOMMODATION DISAPPEARING ACT

It's hard enough having to reject an employee's religious accommodation request right off the bat, let alone having to do it after the employee has enjoyed the accommodation for many years. How do you rescind a long-term accommodation without creating the appearance of discrimination? The answer depends on...View the full story on our website.

Check out the new HR Soapbox, "Pets Might Not Be On The Clock, But They Should Be In The Office," in which an editor offers advice on becoming a pet-friendly employer.