From the HR Support Center: Can We Reduce the Risk of a Termination by Calling It a Layoff?

From the HR Support Center: Can We Reduce the Risk of a Termination by Calling It a Layoff?

Does presenting a termination as a layoff reduce the risk of an unlawful termination claim? We have a new manager who’s not performing well that we want to let go.

No. In fact, it could create more risk. If the terminated manager saw that you were hiring again for the position you were supposedly eliminating, they’d likely start thinking of reasons you would lie to them about why they were terminated. Since poor performance would be a perfectly legal reason for a termination—and one which you could have shared—they will likely start thinking of potential illegal reasons for their termination. While an investigation or litigation might not go far, any time spent dealing with an angry former employee (if it could have been avoided by telling the truth), is time wasted.

In this case, we would recommend putting the manager on a performance improvement plan and documenting their progress (or lack thereof). If the employee’s performance doesn’t improve within the time frame set by the performance improvement plan, you’re on much safer ground to terminate their employment. If their performance does improve, then you’ve got a winning situation; you have someone performing well in the role and you avoid the risks of termination as well as the added costs of finding a replacement.

The HR Support Center is a service offered to Payroll Partners clients, and provides access to exclusive, industry-leading HR tools and resources, for just a few dollars a month. From employee handbooks, job descriptions and other commonly used HR documents, to up-to-the-minute law alerts, easy-to-understand state and federal law libraries, and unique training videos, the HR Support Center will help you effectively manage your HR compliance and employee relations needs.

Legal Disclaimer: Payroll Partners and/or the HR Support Center are not engaged in the practice of law. The content in this email should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. Payroll Partners and/or the HR Support Center cannot be held legally accountable for actions related to this article.