If an employee is an at-will employee, he or she is not entitled to any explanation about the reason for the termination. Nevertheless, when terminating an employee, most employers sensibly provide the employee with a reason for the termination. In any subsequent litigation, the employer will be required to explain the legitimate, non-discriminatory reasons for the termination in more detail than may have been provided to the employee. Two recent cases make clear that in such situations, employers must ensure that they are being consistent with the original reason provided to the employee: “Elaboration” on the original reason is allowed, but “shifting” reasons can lead to $300,000 verdicts.
In the first case, the employer gave the employee a reason at the time of termination, and then provided additional examples of the employee’s poor performance in the litigation. The Eighth Circuit Court of Appeals noted that the employer’s supplemental explanation in the lawsuit was not a substantial shift in the reason for the termination. Instead, it was just an elaboration of the original reason, which was permissible and appropriate.
In the second case, an employee sold homes, and she was transferred by her employer from a “booming” district to a less profitable one, which caused her to quit within four months due to a lack of sales. In her constructive discharge lawsuit, the employer had difficulty settling on one reason for the transfer, explaining variously that the “transfer was a staffing change, a promotion, a way to dismantle the partnership . . . or for training needs.” The Court found that these “shifting” reasons furnished sufficient support for the jury’s $300,000 verdict, which the Court let stand.
As we said in our last post, the average juror is probably more sympathetic to employees than employers, and issues such as firing someone right after they engage in protected activity or providing shifting reasons for the termination may lead to substantial verdicts for plaintiffs. Employers must, therefore, be able to clearly and consistently explain all adverse employment decisions.