Employee termination quiz!

Employers make their own luck.

When it comes to terminations of employment, are you lucky or unlucky? Take our quiz and find out! As always, the answers appear after each question, so you can cheat all you want, and we'll never know.

At the end, there will be a nice Friday the 13th gift, chosen especially for you.

Ready? Here we go!

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No. 1: On a busy day, you are asked to fill out the termination paperwork on Igor, an employee whom you don't know. While working on the form, you are interrupted by one phone call, one employee who wants to file a grievance against her supervisor, and one employee who needs help filing a claim under your group health insurance. In all the confusion, you realize that you forgot to check whether Igor was eligible for rehire. You don't have time to look it up or ask anyone, so you check "Yes," and file away the form.

You later learn that Igor was terminated for sexual harassment, horseplay, falsification of records, and insubordination -- followed by a three-day no-call/no-show. By saying that Igor is eligible for rehire, have you created a legal problem for your employer?

A. No, because you gave Igor the benefit of the doubt.

B. No, because sexual harassment, horseplay, falsification of records, and insubordination, followed by a three-day no-call/no-show, aren't really that bad.

C. Yes, because if management at your company ever changes, there is a risk that your mistake will cause harassing, careless, lying, disobedient, and absent-without-calling-in Igor to be rehired.

D. Yes, because if the mistake is discovered after Igor files a charge of discrimination or a lawsuit, you won't be able to change the form to "Not Eligible for Rehire" without risking a retaliation complaint.

E. A and C.

F. C and D.

G. All of the above.

ANSWER: F. Hectic days are a drag, but it is very important to be accurate in your documentation at the time of termination. If you are too busy, wait until the next day when you have time to do it accurately and check about anything you're unsure of. Late and accurate is better than fast and wrong. And as long as you make the correction before you know about a charge or lawsuit, you're not that late.

(Hat tip to my law partner and next-door neighbor Bill McMahon for this one!)

No. 2: Same awful Igor, but now you are filling out the unemployment paperwork. Where it asks for "Reason for Termination," there is only a half-page-width line for your answer. You write, "Sexual harassment," figuring that was the main reason for the termination because it was listed first, and submit the form. Have you created a legal problem for your employer?

A. No, because sexual harassment is very serious. #MeToo.

B. No, because the unemployment agency should have provided more space on the form if they'd wanted all of your reasons.

C. Yes, because maybe there was no quid pro quo.

D. Yes, because your incomplete answer may make it more difficult for the employer to say to government agencies or the courts that Igor was terminated for multiple awful reasons, and not just sexual harassment.

ANSWER: D. What if it turns out that the "sexual harassment" was a single off-color joke that would have resulted in a reprimand, but not a termination? 

When you terminate an employee, you should be sure that your documentation includes all the reasons for the termination. Your employer will need it in the event of a charge or lawsuit.

If the unemployment form is on paper, you can always attach an extra page with the complete information. If it's an online form, there should be a way for you to attach a pdf or at least indicate somewhere that there are more reasons than the field is allowing you to enter.

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No. 3: You have just received unemployment claims from two employees who were terminated a short time ago. Lula Mae was terminated for poor attendance, after progressive warnings. Floozie Rae was terminated for stealing money out of her co-workers' handbags while they were away from their desks. Should you contest their unemployment claims, or not?

A. Contest Floozie Rae's claim because she committed serious misconduct, but let Lula Mae collect unemployment.

B. Contest both claims.

C. Let both employees collect unemployment.

D. Let both employees collect unemployment unless they've filed EEOC charges; in that case, fight them both to the death.

ANSWER: A is probably the best answer in most states. Attendance is a legitimate reason for termination, but it may not be serious enough to disqualify the employee from receiving unemployment benefits. In states that take a harder line, B would also be a correct answer. C is legal, but most employers would not want to stand by and let a thief collect unemployment. D would be unlawful retaliation, natch.

No. 4: You have decided to fight Floozie Rae's unemployment claim. Floozie is initially denied benefits, but she appeals. Then you find out that she has hired an attorney who will represent her at the hearing. Which of the following is not a good option for your company?

A. Notify the judge that you will not attend the hearing.

B. Go to the hearing and face the attorney. You have the truth on your side.

C. Attend the hearing, but take the company attorney with you.

ANSWER: B is the worst option. Never go to an unemployment hearing without an attorney if you know that the former employee will be represented by counsel. Not attending at all is actually a better choice than trying to handle it on your own if the employee is represented. If you don't go at all, you don't have to worry about providing testimony that will be used against the company later on.

Normally, what will happen if you don't go is that the judge will ask the employee what happened, the employee will give a one-sided account that will allow her to receive benefits, and the employee will get benefits. That's it. But her testimony, or the fact that you stood down, or even the fact that she was awarded benefits, cannot be used against your company in any other proceeding, including a charge or lawsuit.

(Of course, you can also contest the claim and attend the hearing -- with your attorney there to protect you and your employer.)

No. 5: You have been asked to provide reference information on Huck, who was terminated for starting a fight with two co-workers and threatening to beat his supervisor's a** when she tried to break it up. What is your best option?

A. Provide dates of employment and positions held, and no other information.

B. Send a letter saying, "Huck was a wonderful employee and would be an asset to any company. I give Huck my unqualified recommendation."

C. Send a letter saying, "Huck is a violent, dangerous criminal. Whatever you do, DO NOT HIRE."

D. Send a letter saying, "Huck's employment was terminated after he started a fight with two co-workers and told his supervisor that he would "beat her a**" when she tried to break up the altercation."

ANSWER: D. It's not defamatory because it's factual, and truth is a defense to a defamation claim. It also provides enough information to give fair warning to his prospective employer. In most cases, A would be the best answer (for example, if an employee is terminated for poor performance, attendance, or less serious rules infractions), but with a bad guy like Huck you might want to lend a hand to a fellow employer.

There is also a selfish reason to provide a carefully worded truthful statement to prospective employers about your really bad apples. Some courts have found employers to be liable for negligence (or worse) when they provide good or neutral references for, say, moderately violent employees who go on to the next workplace and do something really bad.

Answer B (saying Huck is great) is a lousy thing to do to another employer. C is potentially defamatory because it implies that Huck is worse than he really is. And that's saying something.

One caution: If you think you're in a situation where you need to provide a prospective employer more than "name, rank, and serial number," be sure to consult with your attorney on exactly what to say and how to say it.

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No. 6: You are terminating Dorita, who has been an abysmal performer, but you don't want to hurt her feelings. What's more, she is 55 years old, has a disability, and filed an EEOC charge against the company last year. To avoid "rocking the boat" any further, you tell her that it's a "position elimination" even though the ad for her job has already been submitted to Monster.com, and you have three interviews scheduled for next week. This is wrong on how many levels?

     A. Too many levels to count.

     B. No levels.

ANSWER: A. What do you think will happen when Dorita finds out you are hiring for the position that you "eliminated"? That is a rhetorical question. And if you didn't tell her the real reason, you're going to have a heck of a time persuading anyone else (like your unemployment agency, the EEOC, or a judge or jury) that Dorita was terminated for legitimate performance-related reasons. No matter how unpleasant it may be, it's easier to tell the truth in the beginning than to try to persuade people after the fact that you were lying then but aren't lying now.

HOWD'JA DO?

5-6 correct: You are a Lucky Charm -- magically delicious!

3-4 correct: Hey, look you over! You're a four-leaf clover!

1-2 correct: Uh . . . maybe a three-leaf clover . . .?

0 correct: Oh, well. Only a few more hours, and it'll be Saturday the 14th.

Just kidding! You all did great! And here is that special Friday the 13th gift I promised you:

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(Oh, did I say "gift"? I meant "gif." Sorry!)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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