Employee termination and the at will status

by on May 28, 2009 · 0 Comment POSTED IN: HR Info Center

Everyone has cause to sue for wrongful employee termination

Since the vast majority of our employees, are at will, you can fire an employee with or without cause and with or without notice. That’s true. But you can’t just start an employee termination without any documentation. Because in the end everyone is in a protected category, and if you fire an employee without notice or cause, it can lead to claims of wrongful employee termination.

Everyone has a particular race, color, religion, national origin, gender, age, etc. Depending on how the termination goes, an employee may be able to sue for wrongful employment termination. If you go another step, and that employee is in a union, that employee may be able to say that she was fired without just cause, which is also grounds for a wrongful employment termination claim. So, while at will is a basic guideline, we’re never going around terminating an employee just to test the at will doctrine. We always want to show that we have a legitimate, nondiscriminatory reason for the employee termination we are taking. So, when we’re terminating an employee, we want to make sure we’ve got a reason. And we want to be able to show in writing that the actions were consistent with the reasons we gave for terminating that employee. If you do all that, it’ll be easy to defend against claims of wrongful employee termination

Consistency is extremely important with employee terminations
One way to show that you’ve got a nondiscriminatory reason for an employee termination is to be consistent. Consistency is extremely important. You want to treat similarly situated people similarly. So before you fire an employee or go through disciplinary action, you want to ask yourself, or ask HR, how was this handled in the past? Consider, for example, the story of a manager who was walking through a warehouse and he sees two feet sticking out from one of the work tables. He goes over and he sees a guy asleep on the floor with a pillow and a blanket.

He takes a post-it note and he writes you’re fired. And he sticks it on the guy’s forehead. And the sleeping guy wakes up, he peels off the post-it note, he reads it, and he says, oh, no, no, no, please don’t fire me. The manager says what are you talking about, you’re out of here. That guy who was fired for sleeping on the job, he sues for wrongful employment termination. In his lawsuit, he says, you company, you say that you fired me for sleeping, but you know what? The last four guys you caught sleeping on the job, you didn’t fire them. I’m Hispanic. They weren’t. This is not about falling asleep on the job, this is about national origin discrimination. That’s the kind of wrongful employment termination claim you want to prevent. That’s why you want to know, has this happened before? How have people been treated before?

Consistency and documentation are the cornerstones of employee termination
So how does this notion of consistency tie into documentation? Well, being consistent, means documenting infractions for known problem employees, as well as, for good employees. For example, if a company strictly enforces a tardiness policy for the problem employee, who happens to fall within a protected class, but not for the model employee, who happens not to fall within a protected class, then that company could face a discriminatory treatment claim. In other words, be consistent both when you discipline and fire an employee.

That being said, documenting employee discipline and performance is time-consuming, burdensome, and unpleasant. Because of this, documentation often comes out inconsistent, haphazard, inaccurate, or insufficient, which as a result can bring about wrongful employment termination lawsuits.

Edited remarks from the Rapid Learning Institute webinar: How to Document Terminations So You Won’t Lose a Lawsuit by Alyssa Senzel given on June 7, 2006

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