Necessary Steps for Terminating an Employee


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Before an employee is fired, it is essential for the employer to consider various factors such as discrimination, harassment and if there is a cause that he or she could sue. For the employer, he or she must ensure the words used and actions taken are able to stand in court against the words and claim of the employee if it comes to litigation.

Even in right to work states, it is possible for an employer to fire someone inappropriately and then find himself or herself facing a lawsuit. There are other instances where the individual is seeking unemployment and is challenged by the company. In these situations, it may be possible to resolve the matter outside of the courtroom. The right to work or at will stipulations provide for both the employer or employee to fire or leave the company for any reason. However, it is usually not as simple as dismissing someone or the worker leaving the business. Civil rights issues are constantly occurring when the person has been fired for race, gender, age, disability and sex.

The Civil Rights Act protects those listed in the regulation from termination based on these factors. Even with at will states, these are not permitted reasons to fire someone. There are additional exceptions based on both state and federal statutes to protect employees. These may include jury duty, military service or active duty, someone acting as a witness in a court case and similar concerns. Some locations within the United States have exceptions in place for those with a criminal history, sexual orientation, and other nonstandard matters. Certain laws are conflicting, and it may require the help of a lawyer to determine which supersedes the other. For these exemptions, it is important that the employer has documentation about why the person was fired and some backup evidence.

Important First Steps

To avoid many lawsuits, it is important to distribute an employee handbook to workers within the company. This should be free of obligations owed to the employee by the business. The most important aspect of these items is the disciplinary policy, how termination occurs and what must be followed to retain employment. The first day of training or employment is usually when these are handed out through a hard copy and they are generally signed by each worker denoting these rules have been understood. No matter how detailed the handbook is, it is vital that the company hire a lawyer to assist with the wording and clauses to ensure it is beneficial to the company.

Each violation the employee incurs should be documented carefully and liberally. Oral explanations of infractions are not enough when the person has been engaging in poor behavior, performance or certain violations. It is best to have a written document with a signature from the employee should be placed in his or her file. When termination procedures are started, these files become important if litigation is likely. Additionally, the disciplinary policy explained in the handbook should be strictly enforced for all employees without exceptions. This shows that the business has treated each worker equally. Any exceptions made could lead to civil rights violations being presented in court.

Subsequent Steps

Before the employee is fired, it is crucial to investigate the matter fully. This could reduce the possibility of litigation. All factors should be discovered such as computer files and email violations, disrespect to superiors, infractions with colleagues or even harassing behavior. Then, the employer should know what laws exist in the local area, state and city ordinances and national level legislation. If there is the possibility that someone could make a case for civil rights violations, it may be better to keep the person until there is an unrelated reason for the termination. Each situation must be carefully judged by the employer.

The worker should be put through the disciplinary policy before immediate termination. He or she could be placed on notice, suspended from work for a certain amount of days or placed on probation until so many hours have been exceeded. There may be a case for the employee when he or she is able to confirm to the court that there was no notice of any wrongdoing or violation warning. After no improvement with work and being on notice, this could be the time to complete the termination process. This must be professional and accomplished with dignity. The employee should be placed in a private location with at least one other person available as a witness and away from any other workers. Then, a lawyer may be needed to finalize the proceedings or to assist with litigation.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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