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6 ways you cannot legally fire someone

September 18, 2010

By Jennifer by Paauwe-Riffe,
SPHR, Senior Human Resources Consultant,
AmeriBen / IEC Group

Considering or determining a termination of employment can be an emotional experience. By taking a proactive approach you can ensure the separation experience maintains the employees’ respect and dignity while reducing potential liability. Reasons for termination include unsatisfactory performance, organizational change and misconduct.  When faced with unsatisfactory performance the progressive discipline process is meant to provide an avenue to correct performance and behaviors that impede work flow. Many times, a manager or supervisor can be at the end of their rope with an employee who either is unwilling or unable to meet performance standards.

Although the “At Will” doctrine provides the opportunity for employers and employees alike to terminate the employment relationship at any time, for any reason, ensuring that your termination practices have a methodical approach can be the “life line” when managing all of the legal ramifications and potential for liability.

The primary laws to consider when faced with potential terminations are Title VII, the Pregnancy Discrimination Act, Americans with Disabilities Act, the Age Discrimination in Employment Act, the Uniformed Services Employment and Reemployment Rights Act, and the Family and Medical Leave Act.

Documentation is crucial and serves to outline the most important facets for reaching the decision to terminate. The most important things to document are the valid business reason, adherence to company policy, any investigation conducted and consistency with similar situations.

In preparing for a termination, ensure the following laws are considered prior to moving forward with the termination meeting:

1. Title VII prohibits employers from terminating employment based on race, color, religion, gender and national origin.

2. Pregnancy Discrimination Act (PDA), an amendment to Title VII, prohibits termination of employment based on pregnancy and childbirth.

3. Americans with Disabilities Act (ADA) prohibits employers from terminating employment based on disability.

4. Age Discrimination in Employment Act (ADEA) prohibits employers from terminating employment based on age 40 and over.

5. Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from terminating employment based on military service.

6. Family and Medical Leave Act (FMLA) prohibits employers from terminating employment based on the serious medical condition of employee, spouse, child, parent or for birth or adoption of child.

When considering termination for misconduct or an egregious violation of company policy, even if the facts surrounding the incident seem evident, it is always recommended to suspend the employee pending an investigation. The suspension ensures that all relevant information is considered and evaluated per the process outlined above. This best practice will limit the exposure for liability if the decision is challenged and provide the necessary documentation to ensure compliance with the applicable laws.

Article courtesy of AmeriBen IEC Group

  
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