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Cancel Sign In. Please purchase a SHRM membership before saving bookmarks. OK Join. An error has occurred. From Email. To Email. Letting go of an employee is one of the more difficult aspects of running a business. If you fire an employee for a reason that is protected under the law, you may find yourself involved in a costly legal battle. This section will provide you with the information you need to know in order to avoid a wrongful termination suit.
Read More. Almost every state recognizes that any employee who has not entered into an employment agreement or contract with his or her employer is considered an at-will employee. The principle behind at-will employment is that workers are employed at the will of their employer.
In other words, an at-will employee can be fired at any time and for any reason. The employer does not need good cause and does not need to provide any notice to the employee. Under both federal and state laws, there are exceptions to the at-will employment doctrine. An employer who fires an employee in violation of one of these laws may be sued for wrongful termination.
A supervisor's recommendation to terminate an employee raises a red flag when: The employee has an established record of satisfactory performance. The supervisor's recommendation is based on subjective reasons that are not substantiated by written documentation. Notification of the Termination Decision Notifying an employee that his or her employment has been terminated is a delicate task, and employers should think things through carefully before delivering the news.
Who Typically, the employee's direct supervisor and a human resource representative attend a termination meeting.
What Individuals in charge of delivering the news of a termination should always plan out what to say in advance. Essential topics to cover include the following: That a decision has been made to terminate employment.
The reason s and key facts supporting the decision. The effective date of separation. A review of the separation package and benefits. A review of the policy and procedures for giving references. A review of applicable post-termination restrictions, such as noncompetition or nondisclosure agreements. What will happen immediately following the meeting e. Other exit activities e. Whom to contact about post-termination issues.
See: Should a company provide a terminated employee with a reason for the termination? Where Termination meetings are best held in a neutral, private setting such as a conference room. How Employers should be prepared in advance to do the following: Block computer system access. Change pass codes.
Remove the employee's name as a signatory to bank accounts or post office boxes. Collect keys, identification badges and organization property. Obtain adequate personal security if the situation becomes hostile.
Post-Termination Interactions Employers should prepare for a variety of post-termination communication challenges, including inquiries from other employees, government agencies, prospective employers and the former employees themselves. Announcements The employer should prepare a clear, brief and general explanation about why the employee is no longer with the organization to share internally with those affected by the employee's departure.
Exit interview Employers should consider whether to use an exit interview or questionnaire to collect the discharged employee's views about areas of concern for the business.
References and employee records Reference inquiries about the discharged employee from prospective employers should be handled in accordance with the organization's reference policy and procedures.
These include: Claims that the employee was wrongfully discharged i. Claims that the discharge wrongfully subjected the employee or another party to financial injury, emotional distress or bodily injury i. Contractual claims An employee may allege that he or she was discharged in violation of the following: A written or oral contract.
A contract implied in the terms of an employee handbook. Written or verbal promises that the employee would be treated in a certain way, which the employee relied on to his or her detriment, under the legal theory of promissory estoppel.
Tort claims Some of the torts that a discharged employee may claim occurred in connection with his or her involuntary termination include the following: Defamation. Occurs when a person makes a false, derogatory statement of fact about the discharged employee, perhaps in response to a reference inquiry or when making an announcement to co-workers. Invasion of privacy, or intrusion.
Occurs when a person improperly intrudes into an employee's legally protected zone of privacy, such as during an invasive and unreasonable search of the discharged employee's body or personal belongings during an investigation of employee misconduct.
Intentional infliction of emotional distress. Occurs when a person does something outrageous or malicious in the termination process, causing emotional distress to the discharged employee.
Intentional interference with contract or employment. Occurs when a person, out of malice rather than legitimate business interests, causes an employee to be fired.
Intentional interference with prospective contract or employment. Occurs when a person prevents a discharged employee from obtaining a new job without having a legitimate business justification for doing so. Other common-law claims Two additional types of common-law claims are: Constructive discharge claims that can arise when an employer made working conditions so intolerable that the employee had no reasonable alternative other than to resign. Claims of discharge in violation of public policy that can arise when an employee was discharged because he or she refused to do something that would: Require the employee to perform an illegal act as part of work-related duties e.
Violate a specific law relating to public health, safety or welfare e. Undermine clearly expressed public policy relating to the employee's basic responsibility as citizen e. Legal Challenges to Termination: Claims Based on Federal, State and Local Legislation Since the s, a complex system of federal, state and local laws has been enacted, prohibiting discriminatory discharges and retaliation against employees for exercising protected rights.
Federal equal employment opportunity laws The following federal equal employment opportunity EEO laws prohibit discrimination in employment actions—including termination—on the basis of protected characteristics, including race, color, religion, sex including gender identity, sexual orientation and pregnancy , national origin, age 40 or older , disability, military service or genetic information: Title VII of the Civil Rights Act of race, color, gender, national origin, religion, sex as amended by the Pregnancy Discrimination Act of and the Civil Rights Act of Federal laws prohibiting retaliation Federal EEO laws also prohibit retaliation on account of an employee exercising his or her rights under the particular law at issue.
For example, Title VII of the Civil Rights Act of makes it illegal for an employer to discriminate in retaliation against an employee because that employee: Opposed any discriminatory practice. Made a charge of discrimination. Testified, assisted or participated in any manner in an investigation, proceeding or hearing. The site is secure.
If you've lost your job, you have certain rights, such as the right to continue your health care coverage and, in some cases, the right to unemployment compensation.
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