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Fire the Bum
In this article I will give you
a quick overview of the legal analysis for firing an at-will
employee.
I will assume the employee is
“at-will,” meaning that you have not entered into an
employment contract with the employee. You can fire an
at-will employee
for any reason or no reason at all (with restrictions – see
below).
First, make
sure the employment is really at-will. Call me if an oral
or written employment contract exists, if you have made
promises to the employee about his or her security, or if
your company handbook has special termination policies.
Second,
know your risks. Your risk when firing an employee is that
the termination is deemed wrongful, that is, made on illegal
grounds. Wrongful termination is a tort, and a big-ticket
liability item. Further, even if you have legal grounds to
terminate employment, nothing can stop the employee from
suing you. Defending a lawsuit is expensive.
Third, if
employment is at-will, you may fire the employee for any
reason or no reason, including poor performance. That said,
you may not terminate employment for any of the following
reasons:
-
On account of a protected
status. The protected statuses that you should
worry about are: *race, *religion, *gender, *pregnancy,
*age over 40, *disability, *sexual orientation, and
*national origin and status as alien (so long as the
employee is legally permitted to work).
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On account of the
employee engaging in some protected activity. For
example, you may not fire an employee for complaining
about workplace health or safety, whistle-blowing,
refusing to commit fraud or falsify documents, or filing
a workers compensation claim.
Fourth,
investigate the facts surrounding the termination, and make
sure the employee’s personnel file supports the
termination. Think through the decision fully and
carefully.
Fifth,
timely deliver the final paycheck and other termination
notices and forms.
Call
me to schedule a legal consultation:
510-796-9144
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