Remember: Avoid litigation through proper planning and execution. The time to defend against the termination lawsuit begins before you hire.

Remember: The first rule of personnel relations: "No good deed out of kindness goes unpunished."

A. BEFORE HIRING

1. Be sure that advertisements and help-wanted ads are not discriminatory.

2. Avoid asking discriminatory questions during job recruiting and selection.

3. Avoid making guaranteed earning claims you don't intend to keep.

4. Review employment applications, personnel manuals and work rules likely to be involved in a termination lawsuit.

5. Regulate statements that recruiters, interviewers and other intake personnel make to new or prospective employees.

6. Discuss all employment terms in advance.

7. Prepare an employment agreement to protect your company.

8. Remember that your position is strongest before the hiring so include many favorable provisions in the confirmation letter or employment agreement.

9. Consider arbitration to resolve employment disputes. Add this clause to your employment agreement.

B. WHILE WORKING

1. Establish clear written work rules which indicate that infractions can lead to discipline and discharge.

2. Carefully prepare periodic performance appraisals; never inflate them.

3. During discipline, be sure you are disciplining or terminating the worst offenders first, not on the basis of any other reason, to avoid charges of discrimination.

4. Respond promptly and properly to charges of sexual harassment, age, sex, race or disability discrimination.

5. Carefully review all termination decisions before making them considering such points as:

a. Are there any potential statutory problems such as race, sex, age, or pregnancy discrimination, or violations of whistle blowing laws or exceptions to the employment-at-will doctrine?

b. Have any representations been made to the employee concerning job security? If so, was the termination consistent with those representations?

c. What does the employment contract say about firings? Were all provisions (i.e., notice of X days sent certified mail) followed?

d. Are there any public policy concerns? For example, has the employee recently exercised a legal right (i.e., attend jury duty) that your company complained about? Or, had the employee been involved in any controversial events that may include misconduct on the company's behalf (i.e., wrongful surveillance or eavesdropping or other violations of employee rights of privacy)?

e. Has the employee received progressive discipline before the discharge?

f. Are there any mitigating factors that may excuse or explain the employee's poor performance or misconduct?

g. What kind of overall record does the employee have? Remember that the longer and better the employee's record, the more reluctant the review should be to approve the termination.

h. Consider whether termination is appropriate under all of the circumstances. Does the punishment fit the crime?

C. BEFORE AND AFTER THE FIRING

1. Be compassionate, yet firm.

2. Offer non-monetary benefits if appropriate.

3. Recover all company property before paying final severance and before the terminated employee parts.

4. Consider the signing of General Releases when appropriate. If so, prepare them properly.

5. Avoid accusations in front of third parties to avoid charges of defamation.

6. Take a conservative approach with potential employers. Remember, bad references lead to expensive lawsuits!

7. Contest unemployment claims where appropriate.

D. PROTECTING YOUR COMPANY FORM DISLOYAL EX-EMPLOYEES

1. Understand what constitutes a trade secret.

2. Create a climate of confidentiality.

3. Advise employees of the seriousness of the problem.

4. Include restrictive covenants in all sales related agreements but be sure the covenant is reasonable in terms of geographic scope and time limitations.

5. Understand the distinction between sales employees and independent contractors; this can affect the enforceability of the restrictive covenant.

6. Establish effective exit procedures.

7. Act quickly if problems develop.