Terminating employees on an at-will basis is dangerous

by on May 29, 2009 · 0 Comment POSTED IN: HR Info Center

Terminating employees with no reason is risky for your company

Most every state in the country has at-will employment. You may have the right to fire at-will, meaning that theoretically, you can get away with terminating employees at anytime for any or no reason. But if you do that, the newly fired employee now has the right to sue at-will. They can sue you for discrimination, claiming that you fired them because they were on the list. The list is any protected class or group, namely age, sex, race, religion, disability or national origin. Take one more look at that list. Everybody is on that list. Even if you’re a young white male, everyone’s got a race, everyone’s got a sex. So everyone is on that list. Therefore, anyone you fire at-will can then sue because they’re on the list. And your HR people will tell you the burden of proof is on you.

The company has the burden of proof when terminating employees

At the EEOC and other state and federal agencies, the burden of proof is not on the employee, it’s on you, the employer. It’s up to you to prove you didn’t use the list when terminating employees. Prove you gave someone a reasonable chance to save their job. The burden of proof is on the company. It’s not your word against your employees, it’s actually your word against our ability to prove that when terminating employees you didn’t discriminate.

There is no pure right to fire “at will”

Now even though as an at-will company in an at-will state, you have the right to fire at-will, it’s not a pure right. There are some protected actions that you can’t fire at-will for. For example, it’s not safe to fire people for jury duty. Likewise terminating employees because of union association is risky. Also, don’t wait until people go out on worker’s comp to fire them; same with military duty. While you could go out and fire for those reasons if you have additional documentation, it’s risky and you could be faced with a potentially costly lawsuit.

And this brings up an important point, too. In reality, human resources’ job is to help the manager at any level reach their goals and objectives—that means harmony, that means productivity and compliance, and it means staying out of court. That’s the goal.

But HR can’t tell you what to do. They can’t babysit you everyday. This is like driving down the freeway. You see the sign telling you the speed limit is 65. Some folks will drive 64 just to be safe. Others see that sign and take it as a challenge. Those people will take a risk and go 80. “No one can make me drive 65”, which is true.

HR can tell you where the safe middle is when terminating employees

Every time you hit the highway, you’re making a risk reward decision. Same thing applies to terminating employees. HR will likely tell you where the safe, middle ground is. Depending on your operation, you might choose to err on the side of caution. Or you might decide its worthwhile to take a risk. As long as you know where the happy medium is, then you can make informed risk-reward decisions.

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott on April 29, 2009

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