How can I conduct an employee termination without fear of being sued?

by on May 22, 2009 · 0 Comment POSTED IN: HR Info Center

Employee termination really depends on several factors.

Without a doubt, navigating an employee termination can be tough. And terminating employees without turning around and getting sued is not an easy task. You may be thinking you live and work in an at will employment state, so why is it that you can’t fire someone at any time for any or any or no reason without any prior notice – it just seems fundamentally unfair.

The mock jury
Well, we were recently preparing for trial. And we engaged a mock jury to help in preparation with an employee termination lawsuit. We told this mock jury that we represented a large employer that has various employment policies. We explained that we had terminated this person for his violation of those policies. Complainant was suing the company for retaliation and sexual harassment. That’s the only information we provided. And then we polled the jury and said, “Would you find for the employer or the employee? Or do you need more information?” Well, 16 out of those 20 mock jurors said they’d find for the employee. Four of them said they needed more information.

The up hill battle to prove your case in an employee termination
It would have been an up-hill battle to change these juror’s minds about the employee termination . And the way to do that would be to show that the company consistently enforces its employee termination policy and that the policy violations were well documented. In all likelihood this mock jury would’ve had no time for an employer who just upped and fired this guy with no warning and no documentation. So, in practice, while you have the right to terminate for any or no reason – you really better have your ducks in a row before you take a serious action like an employee termination..

Some of the things you cannot consider when making employment decisions. You cannot consider race, or sex, or religion, or national origin, or ethnicity, or age, or disability. Other things you may not be be able to consider depending on your local jurisdiction are sexual orientation or perhaps someone’s weight. These factors can be protected under the Americans with Disabilities Act. So these are the types of things you cannot consider when determining whether or not you’re going to fire someone.

So what are some of the lawful considerations during the employee termination process? You really want to make employment decision on the basis of legitimate, non-discriminatory reasons. So what are those? Performance, insubordination, maybe harassment of a co-worker, violation of your other company policies, a reduction enforced, other things such as you know, an employee not coming to work regularly or coming in late.

This is the edited remarks from the Rapid Learning Institute webinar “Firing Employees Without Getting Sued -What Supervisors Really Need To Know” by Laura Liss, Esq. held on October 5, 2006.

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