- Is the employee covered by a collective bargaining agreement (e.g., union employee)?
If so, the termination must be consistent with the Collective Bargaining Agreement (“CBA”).
- Is there an applicable employment policy that restricts your ability to terminate the employment, and if so, have you strictly followed it?
Example: If the employer has a policy that provides for progressive discipline and improvement plans prior to termination, then the policy should be strictly followed before a decision to terminate is effected.
- Is the decision to terminate consistent with “past practices” or “precedent” set by handling similar issues with other employees and the employee in question?
Example: Terminating an employee for excessive tardiness when other employees were only reprimanded for similar infractions could be legally problematic in that the terminated employee could argue that the basis for termination is a “pretext” and that the “real” reason for termination is illegal discrimination or retaliation.
- Is the employment “at-will”?
Employment is “at-will” if the employee was not hired for a specified term and there are no restrictions on the grounds for termination in the employment agreement. If the employment is “at will,” the employee can be legally terminated regardless of whether “cause” for termination exists. More specifically, the “at-will” employee can be terminated for any reason or no reason, so long as the reason is not “illegal” (e.g., discrimination, retaliation, etc.).
If the employment is not “at will,” then the employer must have “cause” to terminate the employment.“Cause” can be defined in the employment contract. If “cause” is not defined in the employment contract, then the grounds of termination cannot be “trivial.” The basis for termination must be “significant” and “relevant” to the employee’s job.
- Have the grounds for termination been adequately documented and thoroughly investigated?
Consistent documentation preserves relevant evidence and is helpful to the defense of an employment-based claim. A thorough investigation includes allowing the employee to tell his side of the story and considering evidence and the statements of witnesses who he identifies. Also, good rule of thumb is to ask whether it is “more probable than not” that the employee committed the misconduct (considering the “totality of the evidence and circumstances”). It is helpful to ask the question, “Would a judge or jury likely agree with my conclusion?”
- Has the employee’s age, disability, race, sex, national origin, or religion played a role in the decision to terminate?
If so, the employee may have a claim for discrimination.
- Has retaliation against the employee for making a complaint or claim played a role in the decision to terminate?
Examples of employees who are victims of illegal retaliation include those who are terminated for:
– Experiencing a work accident or making a workers’ compensation claim.
– Making a complaint regarding discrimination or sexual harassment.
– Utilizing FMLA leave.
– Engaging in whistleblowing (i.e., reporting or threatening to report illegal conduct by the employer or unsafe work conditions).
– Serving as a witness to a co-employee’s complaint or claim for illegal discrimination or retaliation.
- Will the employee be able to show that the employer’s “stated” reason for termination is a “pretext” and that the employer’s “real” reason for termination was an illicit or illegal reason?
Example: If an employee who has taken significant FMLA leave is terminated for “poor job performance,” the employee may be able to argue that the stated reason for the termination is a pretext and that the true reason was retaliation for taking FMLA leave, especially if the employee did not receive any significant performance review deficiencies or has performed her job on par with other similarly situated employees who did not take FMLA leave and who were not terminated.
- Should the employer disclose the reason for termination to the employee?
An employer’s failure to disclose the reason(s) for termination causes employees to suspect that the reason is illicit, which frequently motivates the employee to file a wrongful termination claim. It is usually a good policy to provide the employee with a very concise statement of the reason(s) for termination.
- Should the employee be given an opportunity to voluntarily resign in lieu of termination?As a general rule, yes. An employee is likely to leave with a greater degree of dignity if allowed to voluntary resign instead of leaving via forced termination. The option of allowing the employee to resign is appropriate when there is no gross misconduct or egregious violation of company policy on the part of the employee. The employee may prefer this option because it allows him to truthfully tell prospective employers that the separation was voluntary. Also, an employee who signs a voluntary letter of resignation is also much less likely to pursue an employment-related claim against the employer.
A voluntary letter of resignation should include the following:
(1) The date;
(2) A clear statement that reflects the employee is voluntarily resigning from his employment with said company;
(3) A specific effective date for said resignation (e.g., “immediately” or “effective January 20, 2019);
(4) The employee’s full name printed clearly; and
(5) The employee’s signature.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.