Legally Firing Employees

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Most Common Employment Law Issues:

Can an Employee be Fired for Any Reason?

The vast majority of states in the United States have a system of “at will” employment. This means that, in the absence of an employment contract, the arrangement can be terminated at any time, by either party, for any reason (no matter how arbitrary) or no reason at all.

However, the “at will” presumption may be defeated for several reasons in accordance with a court’s discretion. For example, courts may find an “implied-in-fact” contract between an employee and the employer.

When Firing an Employee Might be Unlawful

Firing an employee might be unlawful if the employee can show that he or she was fired on the basis of race, gender, religion, or national origin. In order to abide bide state and federal anti-discrimination laws, employers should always document the employee’s shortcomings, confront the employee with those concerns, and give the employee a few chances to correct this behavior.

It is also a good idea for organizations to have a system of graduated discipline, such as warnings, re-training, and suspension, with termination being a last resort. If such a system is in place and is consistently employed in the regular course of business, the terminated employee will have a difficult time prevailing in a discrimination lawsuit.

Practical Considerations at the Time of Termination

In addition to legal concerns, basic factors regarding tact and ethics that should be considered. For example, one should never fire an employee where others might overhear. Also, an employer should clearly lay out the reasons for termination in the most polite and civil way possible.

Employers should generally be willing to provide a positive job reference for former employees. When providing a job reference, an employer should never give false information.

Should I Seek Attorney’s Advice?

When firing an employee, a major concern is avoiding a wrongful termination lawsuit. Acting in a way that minimizes resentment will go a long way in avoiding this. An attorney may provide you with more information based on specific facts of your situation. An attorney may review an employment handbook as well as specific facts of your situation to advice you about the type employment relationship your are in and available courses of action. 

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Last Modified: 07-31-2013 10:38 AM PDT

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