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What the law has to say about terminating employees - II

In our last post, we started discussing how business owners who have to carry out the unfortunate duty of parting ways with an employee must proceed cautiously so as not to inadvertently violate the employee's rights or otherwise expose themselves to possible legal action.

To that end, we began examining some important points for employers to consider when they find themselves in this always regrettable situation, starting with a discussion of at-will employment.

To recap, at-will employment -- the reality in 49 states (except Montana) and therefore the vast majority of the U.S. workforce -- dictates that employers can essentially fire their employees for any reason, or no reason at all, without warning.

Limitations on at-will employment     

It's important for business owners -- hereinafter referred to as employers -- to understand and appreciate that this power to terminate at-will employees is not limitless.

For example, if the employee executed an employment contract including a provision dictating that 1) they can be fired for cause only (economic necessity, substandard performance, employee misconduct, etc.) or 2) a set period of employment, then the at-will employment presumption would be effectively circumvented.

In general, these types of termination provisions are included in collective bargaining agreements, or otherwise found in employment contracts executed by executive-level employees or professionals.

Employers must also understand and appreciate that they cannot under any circumstances fire employees for any of the following reasons, as doing so is expressly prohibited by state and federal law:

  • An employee cannot be terminated for exercising such designated legal rights as taking time for military leave, family/medical leave, jury duty or even voting.
  • An employee cannot be fired for reporting discrimination, harassment, health and safety violations or other illegal activity (i.e., whistleblowing)
  • An employee cannot be fired for discriminatory purposes, including those based on race, religion, disability or gender to name only a few.

We'll conclude this discussion in our next post, examining such important topics as the need to document performance, the benefits to which employees are entitled even after termination and the issue of the final paycheck.

Consider speaking with an experienced legal professional as soon as possible if you would like to discuss your options as they relate to employee termination or other pressing employment law matters.

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