Five Ways to Minimize the Potential Legal Liability of Terminating an Employee

Time to Say Goodbye

In our last blog post, we discussed things an employer should (and should not) do when hiring an employee. Unfortunately, every business owner who hires employees will likely have to terminate at least one at some point. Terminating an employee is a sensitive process that requires careful consideration of fairness, legality, and the workplace environment. Below are five things’ businesses should do when faced with the challenging task of letting an employee go.

 1.  Understand Applicable Employment Laws

 Employers should consult with counsel to gain an understanding of applicable employment related laws and to assess whether the termination potentially runs afoul of the law. Such laws may include, for example: 

  • Title VII of the Civil Rights Act of 1964;

  • the American with Disabilities Act (ADA);

  • the Age Discrimination in Employment Act (ADEA);

  • the Genetic Information Nondiscrimination Act (GINA);

  • the Uniformed Services Employment and Reemployment Rights Act (USERRA);

  • the Family and Medical Leave Act (FMLA); and

  • related state laws.

 2. Implement and Consistently Apply Appropriate Policies and Procedures

We have previously posted about the importance of implementing an employee handbook. Having a handbook that contains appropriate policies, and consistently applying those policies, helps shield an employer from claims that it acted discriminatorily.

 3.  Document Performance and Disciplinary Issues

Employers commonly fail to document the problems or issues that ultimately result in an employee's termination. This puts the employer at a disadvantage if an employee claims the termination was unlawful, as the employer will not have documentary evidence to show that the termination was for a legitimate non-discriminatory reason.

 Similarly, when employers do document an employee's performance issues, the employer must be careful to exercise objectivity. Performance reviews and disciplinary notices should not include personal comments, overstatements, or speculation or assumptions as these things will detract from a legitimate reason for terminating an employee.

 4.  Assess the Risk of a Potential Employee Claim

 Before terminating an employee, an employer should assess the risk that the employee may seek to bring a claim for wrongful termination. Depending on that risk, the circumstances for the termination, and the employer's risk tolerance, an employer may consider offering the employee a separation package to obtain a release of claims.

 5.  Protect the Business's Sensitive Information and Property

At the time of termination an employer should take steps to protect its information and property.  For example, an employer should disable the departing employee's access to the company's electronic communications systems.  Similarly, the employer should require the return of all company property, such as keys, computer equipment, etc., at the time of termination.

Terminating an employee is a challenging responsibility that, if done incorrectly, can expose a business to unnecessary legal liabilities. Thus, it is generally important for business owners to consult with experienced legal counsel when terminating an employee.

 If you have questions about terminating an employee, or your business’ employment practices, please schedule a complimentary consultation with us through our online scheduling system.

Information contained in this blog is provided for informational purposes and does not constitute legal advice or opinion. You should consult with an attorney regarding the specifics of your matter or legal issue.

 

Employment LawMichael Moreatermination, employee privacy, compliance, liability