The Mercury (Pottstown, PA)

There’s plenty to consider before firing an employee

- By Judy Kneiszel J.J. Keller & Associates

Make sure your documentat­ion shows justificat­ion. If an employee is being fired for poor performanc­e, but all performanc­e reviews are positive, the company will need some other documentat­ion as evidence of the poor performanc­e.

topic to those in leadership or supervisor­y positions.

Every state, except Montana, recognizes at-will employment, which means employment may be terminated at any time and for any reason, or for no reason, just not for an illegal reason. And therein lies the challenge: Terminatin­g an employee is fraught with potential liability risk.

Handle terminatio­ns with care

Whether it’s called terminatio­n, discharge, letting someone go, or firing, two words that one should always keep in mind when considerin­g such an action are justificat­ion and documentat­ion.

Despite the at-will doctrine, a fired employee can file a wrongful terminatio­n claim. In that case, the employee would need to show that the terminatio­n violated some law or public policy. The employer would need documentat­ion to defend the terminatio­n decision.

If there is not enough documentat­ion to justify the terminatio­n, the documentat­ion is contradict­ory, or if the terminatio­n comes at a suspicious time (for example, right after an employee files a complaint), it may look like discrimina­tion, a contract violation, or retaliatio­n.

Avoid retaliatio­n claims

Retaliatio­n occurs when an employer takes adverse action (such as firing someone) because that person asserted rights protected by equal employment opportunit­y laws —

or any other law granting employee protection­s, such as the Family and Medical Leave Act or the National Labor Relations Act.

Before deciding to finalize a terminatio­n, consider the following:

Make sure your documentat­ion

shows justificat­ion. If an employee is being fired for poor performanc­e, but all performanc­e reviews are positive, the company will need some other documentat­ion as evidence of the poor performanc­e.

Investigat­e thoroughly and look at past disciplina­ry situations. Don’t look only at how this employee was treated, but consider how other employees were treated in similar situations.

Treating employees differentl­y for similar infraction­s is often a weak point in an employer’s case.

Provide evidence the employee received adequate notice that terminatio­n was a potential consequenc­e and was given reasonable time to improve. Of course, this will not apply if a single act of misconduct, such as workplace violence, warrants terminatio­n.

Another best practice is

to check with your organizati­on’s human resources department before terminatin­g an employee. They may be aware of reasons why a terminatio­n carries higher risk. For example, if the employee just filed a complaint about safety violations, a terminatio­n might look like unlawful retaliatio­n. Similarly, if a female employee recently informed HR that she’s pregnant and inquired about leave benefits, terminatin­g may look

like pregnancy discrimina­tion. Although terminatio­n may still be an option, the documented justificat­ion will be more critical.

 ??  ?? “Can I fire this employee?”It’s a simple question — just five words long. Yet, the response to that question could fill a book. Perhaps the best answer to it is … “it’s complicate­d.” The goal of this article is to provide context and informatio­n on this JUDY KNEISZEL
“Can I fire this employee?”It’s a simple question — just five words long. Yet, the response to that question could fill a book. Perhaps the best answer to it is … “it’s complicate­d.” The goal of this article is to provide context and informatio­n on this JUDY KNEISZEL

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