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Firing

There’s danger in every aspect of firing, from WARN Act layoffs and exit interviews to constructive discharge and more.

Learn how to fire an employee and sidestep wrongful termination lawsuits, with battle-tested firing procedures, and employment termination letters. At last, you can fire at will!

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Internally reporting illegal activity may amount to whistleblowing and may protect the worker from discharge, even if the employer has seemingly legitimate reasons for otherwise firing the worker. That’s one good reason to consult your attorney before terminating a worker who may be a whistleblower.
An employer with operations in another nation may be able to push any employment-related litigation away from the United States even if some decisions were made in the United States at, for example, corporate headquarters.
When Minnesota public employees are reinstated following arbitration of a disciplinary case, the employer may still move to prevent reinstatement under the concept of public policy interest. That’s especially true for law enforcement employees accused of using excessive force.
“Vent letters” are becoming more prevalent in the modern workplace. Here are some tips to help deal with this new trend, from attorney Adam Bartrom of Barnes & Thornburg.

If possible, the same manager who made the hiring decision should also make the firing decision. That’s because presumably a manager wouldn’t hire someone knowing they belonged to an obvious protected classification and then turn around and fire that person because of that status.

Some former employees who sue over alleged discrimination try to discredit their employers’ explanations for discharge. Even so, employers have a great deal of flexibility about how they explain the reason an employee was fired.

Employers that have well-documented business reasons for every discharge typically win lawsuits that allege discrimination. Good records force employees to prove that an allegedly legitimate reason for firing was a pretext for covering up discrimination.

A federal trial court hearing a Texas case has concluded that employers can’t use expert testimony to tell a jury that a discharge was justifiable based on a review of a worker’s employment records. That’s for a jury to decide.

Former employees who sue over their discharge sometimes try to use their employers’ shifting explanations for the termination as evidence that they were fired for discriminatory reasons.

Employees with disabilities who are also eligible for FMLA leave have limited protection from discharge if they miss work because of complications related to their disabilities. However, employers also have a legitimate right to expect workers to show up for work most of the time.

Employees can’t quit and claim constructive discharge just because conditions at work became uncomfortable. But what level of discomfort is required?

Workers who are fired for breaking a workplace rule generally aren’t eligible for unemployment compensation. That’s because rule-breaking may constitute willful misconduct, which bars benefits.

Former “Prairie Home Companion” host Garrison Keillor alleges his firing from Minnesota Public Radio was completed without a proper investigation of sexual harassment allegations made against him.

Employees who are out on FMLA leave don’t enjoy any special protection against being fired for unrelated reasons. If you can show you would have terminated the worker even if she had not taken FMLA leave, chances are the termination won’t be seen as FMLA interference or retaliation for taking FMLA leave. However, such a move will probably trigger a lawsuit anyway.

Think an employee’s ultimatum a­­mounts to quitting in a huff? Maybe, maybe not­. If a dispute transforms into a lawsuit, it may be up to a judge or jury to determine if an em­­ployee really resigned or was just blow­­ing off steam.

Q. An older employee has been having significant performance issues during the performance cycle. She is eligible for retirement, but does not want to retire. Can we require her to retire in lieu of termination?

Sometimes, an employee with a blemished disciplinary history may think he will be protected from termination if he takes FMLA leave. But the FMLA right to return isn’t absolute.

A nurse who makes a report under the Texas Occupations Code is protected from discipline because of that report. Discipline within 60 days is presumed to be retaliation. However, employers can rebut this presumption by showing the discipline was not related to the report.

The 8th Circuit Court of Appeals has ruled that a state’s employment laws barring discharge for whistleblowing isn’t preempted by the Airline Deregulation Act.
A Minnesota appeals court has dismissed a lawsuit that challenged a state law providing teachers with tenure protection. A group of parents had claimed that the law violated their children’s rights to an education because tenure made it difficult to get rid of ineffective teachers.
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