You know the game of telephone – one person whispers a phrase into another’s ear, that person whispers the same phrase into another’s, and so on and so on until the final person is left with a phrase completely different from the original phrase. Unfortunately, employers might be unwittingly playing the game of telephone with Federal, State, and local agencies, as well as courts, and could suffer real consequences as a result of the distorted message.
When you terminate an employee, you will often need to describe the circumstances of that employee’s departure to various agencies that may become involved in your affairs – for example, the Maryland Department of Labor, Licensing and Regulation Division of Unemployment Insurance (DLLR); the Maryland Commission on Civil Rights (MCCR); the Equal Employment Opportunity Commission (EEOC); and the National Labor Relations Board (NLRB). When the message given to each agency is consistent, there is usually little reason to doubt the credibility of the employer and the legitimacy of the employer’s reason for termination. However, when an employer tells DLLR that the employee was fired for reason “X” and then tells the EEOC that the employee was fired for reason “Y”, this mixed-messaging raises the specter that the reason given to the agency is a pretext for some other unlawful reason and diminishes the employer’s credibility before other agencies and in court.
When an employer has a legitimate non-discriminatory reason for terminating an employee, consistent messaging is important to avoid a potential dispute as to the true reason for the termination. There are a few steps an employer can take to deliver a consistent message to various agencies when questioned about a departing employee:
- Designate: Designate one person to serve as the contact for agency inquiries. Ideally, this would be an individual in HR or administration. When one person handles all inquiries, it reduces the risk that the employer’s legitimate non-discriminatory reason for termination will get distorted in a game of “telephone” to various agencies.
- Document: When an employer maintains consistent and clear documentation in an employee personnel file, the individual responding to agency inquiries will not have to guess as to the reasons for termination. The message will also be supported by contemporaneous documentation. With clear documentation in a personnel file, those individuals in charge of employee discipline and responding to agency inquiries will not have to engage in a game of telephone amongst themselves to deliver a consistent external message as to the employer’s reasons for termination.
- Deliberate: Carefully review inquiries from Federal, State, and local agencies and consult with legal counsel. Do not carelessly respond to inquiries. Instead, first consult the relevant personnel file, interview key personnel, and deliberate before responding. An employer’s response to agency inquiries can have a great effect on the employer’s ability to successfully defend claims brought by an employee before agencies and in court.
Adam E. Konstas is an Attorney in PK Law’s Education and Labor Group. He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state civil rights agencies on a variety of matters, including employment discrimination, collective bargaining, and sexual harassment. Mr. Konstas also assists private sector employers with the development and updating of employee handbooks, procedures and training. Mr. Konstas can be reached at 410-339-5786 or akonstas@pklaw.com.
