How to Fire an Employee Legally

Following the lengthy hiring process, most employers invest considerable time and money in training new employees. They naturally hope that every worker will continue to learn new tasks and become more valuable to the company.

Unfortunately, some employees fail to ever put forth their best efforts. Once this has continued over a stated period of time, preferably set forth in an employee handbook provided to every new hire on their first day of work, an employer may need to fire the failing worker. This decision to fire must be handled very carefully since far too many dismissed employees are filing wrongful termination cases these days.

Employment Contracts and At-Will Employment

Before trying to fire any worker, an employer must first check to see whether the employee was hired under an express written contract or if he (or she) is simply working on an at-will basis. Under an at-will arrangement, the employer or employee can usually terminate the working relationship “at-will,” providing little or no notice. Of course, most employees still try to give two weeks’ notice that they’ll be leaving in hopes of obtaining a favorable work reference.

Express work contracts are generally labeled as such and placed in an employee’s personnel file. The terms under which the employee can be fired are usually clearly set forth in this type of contract, along with clear statements about whether the employee is entitled to certain benefits or bonuses upon termination. An implied employment contract generally only comes into existence during litigation, when a court must determine if an employee reasonably believed such a contract existed and relied upon that belief to his or her detriment. The court must then determine if the employee was wrongfully terminated and what damages, if any, must be paid to the employee.

Documenting Employee Files with Evaluations and Warnings

Most carefully organized companies require their employees to regularly undergo scheduled work evaluations or reviews. These types of administrative reviews allow wise employers to systematically warn poor performers what they must do to improve their work or face possible firing. Obviously, the high-performing workers are frequently praised or even promoted as a result of these reviews.

Should a boss believe a worker is behaving in a disrespectful or insubordinate manner, a written complaint should be placed in the employee’s file. However, the employee should be given the chance to respond to any such complaint. Problems with a specific employee must always be noted so that the employer can later prove, if necessary, that the employee was fired for good cause and not due to some type of random unfairness or discrimination.

Avoid Firing Employees on Illegal Grounds

In general, employers must avoid firing an employee:

1. On discriminatory grounds (for example, letting a female employee go because the boss would prefer a man hold the position for no justifiable reason)
2. By violating public policy (firing someone for serving on jury duty, assuming that activity won’t unduly harm the employer or other employees and prior permission was obtained)
3. In retaliation for the employee filing an EEOC discrimination claim or reporting an alleged employer failure to properly comply with mandated Occupational Safety and Health Administration (OSHA) standards
4. Who refuses to take a lie detector test (unless the job description set forth a lawful reason for such testing)
5. Just because the person is an immigrant or a member of a particular ethnic group. Likewise, employers cannot fire someone just because the individual is disabled, when reasonable accommodations can be made so that the job can be performed properly.

Unless the employee is committing dangerous or threatening acts, employers should seriously consider giving the employee a minimal amount of notice prior to the firing, except when specific circumstances override that consideration.

Getting Legal Guidance

It’s important to readily consult with an employment law specialist when you believe someone has wrongfully terminated you or is about to fire you. Your lawyer can advise you about the types of work documents you should immediately gather together to protect yourself, before you are barred from the employer’s premises. If the employer has failed to grant you severance pay or some other promised termination benefit, your attorney can try and help you obtain all that you’re entitled to receive while still pursuing the remainder of your claim. Get in touch with an employment law attorney now so you can learn all about the state and federal laws that protect you against wrongful termination.