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Before firing, consider medical conditions, disabilities, discrimination claims
Donald Trump makes it look easy on his reality television
show, “The Apprentice,” but savvy employers understand that workplace
terminations must be carefully planned and executed to reduce the potential for
costly legal claims.
For most employers, discharging an employee is difficult enough without the
additional stress of a lawsuit for wrongful termination, discrimination,
retaliation, or other claims under federal and state employment laws.
Employers too often subject themselves to unnecessary
liability through hasty decision-making, inadequate investigations or common
misunderstandings about the legal protections afforded to employees. By
following a few basic principles, however, you can reduce the likelihood of
successful claims against your company stemming from terminations.
Before discharging an employee for misconduct or poor
performance, consider taking the following steps to determine whether a lesser
punishment might be appropriate.
out what actually happened. Investigate the alleged misconduct by
talking to witnesses and reviewing relevant records—such as production records,
timecards, absentee reports and doctors’ notes—before reaching any conclusions.
Consider whether the employee would benefit from special training.
a “due process” interview. Allow the employee a reasonable
opportunity to tell his or her side of the story. In doing so, you may learn
additional facts that are worth exploring. In addition, you will increase the
perception of fairness toward the employee if a jury is ever asked to decide
the merits of a subsequent claim.
your findings … with caution. For those who remember the
television show “Dragnet,” don’t forget Joe Friday’s famous words: “Just the
facts.” Stick to the facts and leave anything that could be construed as a
personal opinion or legal conclusion out of your notes. Remember, anything that
you write down might someday be viewed by a jury. Thus, a statement that “John
clearly harassed Sally in violation of the company’s sexual harassment policy” may
not be something you want to memorialize in writing.
consistent. Consider the bigger picture before imposing
any type of discipline. You are setting a precedent for similar offenses in the
future. For instance, if John was late in submitting his timecards and was
merely suspended for a day, but Sally committed the same offense and was
discharged, how will that look to a jury if Sally pursues a gender
Letting an employee go is sometimes the only reasonable
solution. While most states follow the “at will” employment doctrine, don’t be
fooled into believing that terminations are without risk. Before discharging an
employee, ask yourself:
*Does the employee have an employment contract? If so,
have you reviewed it to see if your decision complies with its terms?
*Is the employee involved in union activity or covered by
a collective bargaining agreement?
*Does the employee have a disability or medical
condition? If so, have you offered the employee a reasonable accommodation or
advised the employee of his or her rights under the Family and Medical Leave
*Will the termination violate a state law or public
policy against discharging employees—for instance, firing someone for attending
jury duty, for filing a worker’s compensation claim, or for refusing to engage
in an illegal act?
*Is there any inference of retaliation raised by the
termination? For instance, has the employee recently filed a charge or
otherwise complained of discrimination or harassment?
This list is by no means exhaustive, but if you find
yourself answering “yes” to any of these questions, you should stop and
reconsider the decision to terminate.
Finally, remember that employees are owed certain
obligations even after their employment ends. For instance, under the Virginia
Wage Payment Act, a discharged employee’s final paycheck must be issued no
later than the next regularly scheduled pay date.
Employers must ensure that applicable continuation
coverage notices—as required by the Consolidated Omnibus Budget Reconciliation
Act of 1985—are issued in a timely manner. In addition, courts have recognized
that retaliation can occur even though the employment relationship has ended.
No employer is immune from claims related to a
termination, but following the above guidance and working closely with your
human resources department or legal counsel can greatly reduce your company’s
exposure to potential claims.
Tevis Marshall is of counsel in the Richmond office of Ogletree Deakins.
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