Employee Firing Procedures

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 Do I Need a Reason to Fire an Employee?

It is a common misconception that employers need a reason to fire at-will employees. In fact, most employment contracts in the United States are considered “at-will,” which means that either party can terminate employment for any legal reason or even no reason at all.

In most cases, an employer can choose not to renew a contract for any reason they chose without having to justify their decision with anything other than their own business judgment. Even if the reason to fire someone is still related to the individual’s conduct or performance, employers should make sure they follow all their legal obligations.

What Is An Illegal Reason For Termination?

We all know that being habitually late for work, ignoring instructions from superiors, breaking rules, displaying poor conduct, or being insubordinate are all examples of behaviors that could be considered grounds for termination.

On the other hand, there are some situations where terminating an employee is illegal and constitutes wrongful termination.

In addition, employers must comply with all federal and state anti-discrimination laws that protect potential and current employees from discrimination based on certain characteristics. These include a person’s age, gender, disability, race or religion.

Under Title VII of the Civil Rights Act of 1964, it is illegal for employers to discriminate against an employee because they are a member of a protected class.

Protected Activities
Under the National Labor Relations Act (NLRA), employees have the right to engage in “protected, concerted activity” to improve their working conditions.

These activities may include forming, joining or assisting a labor union; participating in wage negotiations; filing complaints about working conditions with the government or company management, or discussing their terms of employment.

Employers are not permitted to retaliate against employees on the basis of their protected activities under Section 8(a)(3) of the NLRA by firing, cutting wages, changing benefits, transferring someone to an undesirable location or taking other negative actions.

However, while employers can’t fire workers for engaging in these legally protected activities, they are allowed to discipline them if they do so while on duty or at work sites.

Age Discrimination
Under the Age Discrimination in Employment Act (ADEA), it is illegal for employers to discriminate against employees or job applicants aged 40 and older.

While there are certain exceptions to this rule that allow employers to favor younger workers if age is considered an essential requirement of the job, most at-will employees cannot be fired simply because their employer thinks they’re too old.

Family or Medical Leave
Employers must also make allowances for leave taken under the Family Medical Leave Act (FMLA). This law entitles eligible employees to take up to 12 weeks off per year for medical conditions, their own serious illness, or caring for sick family members. Upon their return from leave, employees must be restored to their original positions or comparable ones.

Some employers fire employees as a way of getting back at them for reporting violations or getting hurt on the job. An example would be terminating an employee for filing a worker’s compensation claim.

Worker’s compensation is a state-mandated insurance program that provides benefits to employees who are injured or become ill as a result of their job. Most states prohibit employers from firing or retaliating against employees for filing a workers’ compensation claim.

Another example is firing someone for whistleblowing or reporting misconduct or an illegal act to the authorities.

There are a few factors that courts will consider when determining whether an employee can be fired for whistleblowing. These factors include:

  1. whether the employee had a reasonable belief that the information disclosed was true;
  2. whether the employee disclosed the information to a proper authority; and
  3. whether the disclosure caused actual harm to the employer.

If an employee can demonstrate that he or she met these three factors, then it is more likely that they will be able to successfully argue that they were wrongfully terminated.

What Should An Employer Consider Before Firing An Employee?

One thing that is good for a business to consider is the potential financial impact of terminating an employee.

Depending on things like state laws, standard operating procedures, and employee handbooks, an employer may have to pay severance, unused vacation time, and pay unemployment if necessary as in the case of a layoff or business closure.

It’s important for employers to carefully consider each termination and weigh all of their options before proceeding with a termination just to be on the safe side. Some things to itemize in a termination plan are:

  • The reason for the termination
  • The effects of the termination on other employees – e.g., morale
  • The potential liability of the employer in terminating the employee
  • The financial impact of the termination on the employer
  • Any statutory requirements that must be met before terminating the employee

No matter what the reason is for terminating an employee, it’s always a good idea to have someone witness the termination. This helps in case there is a disagreement about what took place or what was said during the termination meeting.

A witness’s testimony would be helpful in case a former employee sues the business. It’s also wise to have the meeting well documented in the event the termination goes to trial.

What Is An Independent Contractor?

There isn’t a strict definition under the law as to what constitutes an independent contractor, but most states agree that if an employer exerts too much control and supervision over an independent contractor, then a court may find that they are really an employee instead of an independent contractor.

Some employers may want to categorize their workers as independent contractors and not as employees.

Businesses that engage in this sort of conduct do so because they are trying to cut costs since independent contractors are not entitled to the same benefits or protections of employees like worker’s compensation for example.

Independent contractors are subject to different employment laws such as filing for their own taxes for example. Businesses are bound by federal and state laws to pay or deduct certain taxes of employees.

Wrongful Termination Damages And Remedies

If you feel you have been the victim of wrongful termination, you may be able to file a claim with the Equal Employment Opportunity Commission (EEOC).

If you choose to sue your employer for wrongful termination, you may be able to request back pay, benefits, compensatory damages, and punitive damages. You may also be able to get a court order forcing the company to rehire you with no loss of seniority or status within the company if that is an option in your state.

If you were forced out of a job because of discrimination, whether it was ageism, racism, sexism or some other form of bias, most states allow employees to seek double back pay as a penalty under state laws.

Should I Hire a Lawyer for Help with Termination Issues?

If you are facing termination or have been fired, it is important that you understand your rights under state and federal employment laws. Discuss your situation with an wrongful termination attorney who specializes in labor law, and find out whether you might be eligible to receive damages for wrongful termination.

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