At will employee terminations have a greater risk that documented terminations for cause
While it is true that everyone is at-will, it’s also true that everyone is a member of a protected category. These protected categories fall under title seven of the Civil Rights Act, under the Americans with Disabilities Act, The Age Discrimination and Employment Act, as well as other federal laws that protect against discrimination and state law and local law equivalents. In “at will” employee terminations, the employee may try to claim he was a victim of wrongful employment termination.
Everyone fits in a protected category
Since everyone has a particular race, color, religion, national origin, gender, age, et cetera, depending how employee terminations go, an employee may be able to claim that his was a wrongful termination in violation of public policy.
Further, if you’ve got a union in your workplace and that employee is a member of a union, she may be able to say that she was fired without just cause. So, while at-will is the baseline, never go around just testing the at-will doctrine with employee terminations for no good reason or documentation; if you do it too often or to the wrong person, it could lead to wrongful employment termination claims
Always have a legit reason for employee terminations
You should always show that you have got a legitimate reason for the employee terminations. And we want to be able to show in writing that our actions were consistent with that reason. So, at-will is the baseline, but it’s not something you’re going to use to randomly fire people at work.
One way to show that you’ve got a legitimate non-discriminatory reason for employee terminations is to be consistent. You want to treat similarly situated people similarly. So, before disciplining or terminating an employee, you want to remember or find out from Human Resources how a situation like this was handled in the past. If that has come up before, you need to consider how you dealt with it, and handle it in the same or a similar way.
Think of it this way: if you terminate an employee for sleeping on the job, but let three others off the hook for the same thing, you’re going to run into a problem. That newly fired worker might get a lawyer and sue your company for wrongful employment termination. The worker will probably claim that he wasn’t fired for sleeping on the job, but rather because of his race, nationality, age, or some other factor.
In that case, it will be easy to suggest the company did commit a wrongful employment termination. But suppose the situations aren’t similar. Suppose those other three workers have only been caught once, but that other guy has been caught sleeping repeatedly. In that situation, terminating the employee is easier to justify, since there aren’t any inconsistencies in your firing practices.
So, how does consistency relate to documentation? Well, being consistent means documenting infractions for people who are known problem employees as well as for good employees.
If you need all of your call center employees to be there at 8:30, you don’t want to let some slide and not the others. But at the same time, documenting employee discipline, as well employee terminations, isn’t fun for anybody. It’s time consuming, unpleasant and burdensome, which is why documentation often ends up being inconsistent. It ends up being inaccurate, haphazard, or insufficient. And as a result, terminating an employee might lead to claims of wrongful employee terminations.
Edited remarks from the Rapid Learning Institute webinar “Effective Termination Techniques -How to Document Terminations So You Won’t Lose a Lawsuit” by Alyssa Senzel October 24, 2007
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