Firing — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Page 2
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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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When you set out to discipline a worker for breaking a rule, prepare a report that tells the whole story. That’s especially important if you need to justify why one employee received a harsher punishment than others who, in the past, may have committed similar offenses.
Make sure your managers and supervisors clearly and formally communicate their performance expectations. A performance review that criticizes alleged poor work based on expectations that weren’t clearly communicated can become the basis for a lawsuit.
If you haven’t had to interact with EEOC investigators yet, chances are you will eventually. And a supervisor who hasn’t been properly prepared to deal with EEOC investigators can sink your case fast.
The 8th Circuit Court of Appeals had reinstated a lawsuit against a grain operator based on the suspicious timing of a discharge and the use of what the court thought sounded like a manufactured excuse for not rehiring the worker.
Generally speaking, the law does not tolerate inconsistency very well. That’s one reason it’s so important to be careful about how you explain someone’s termination. If your story changes, don’t be surprised if it winds up being used against you.
Courts don’t want to be in charge of running your business. Generally, if you can put forth a genuine, legal rationale reason for an action—such as terminating an employee for budgetary reasons—courts aren’t going to step in.
If you have a progressive discipline system, give yourself some wiggle room. Make sure you retain the right to immediately terminate an employee when necessary.
Occasionally, it may become clear that a whistleblower needs to be fired for reasons entirely unrelated to his protected activity. That requires careful thought, because the employee may claim that his termination was retaliation.
Just because you win one of several lawsuits over a termination, that doesn’t mean remaining matters will be automatically dismissed. It may not matter that one judicial decision might support your stated reason for firing the employee.
Public employees may have constitutionally protected property interests in their jobs and the right to due process before losing their jobs. A federal court has now ruled that using a secret algorithm to determine whether a public employee will lose her job may violate that right to due process.
Q. We discovered that one of our employees has a history of unprovoked violent fits due to schizophrenia. We certainly sympathize with our employee’s struggle, but we also worry about the safety of customers and other employees. Does state law allow us to fire him for this reason?
An employee who had a long history of filing internal discrimination claims has lost a retaliation lawsuit. She alleged her employer retaliated against her when it terminated her after she missed work for medical reasons, an absence her doctor believed might last indefinitely.
Worried about how to handle offensive co-worker comments? You certainly want to discourage such behavior and make clear it must stop. However, take comfort in knowing that a few stray comments over time won’t cost you a hostile work environment lawsuit.
When a volunteer for a nonprofit organization is “fired” from his voluntary position and the organization subsequently reports the circumstances to his actual employer, resulting in his termination, can the volunteer sue the nonprofit for tortious interference with his employment contract?
You’re surely on safe legal grounds to fire an employee for conduct that breaks the law, aren’t you? Of course you are. But that doesn’t mean you’re free to talk about the circumstances.
Here’s advice if you’re ever tempted to fire an at-will employee because she is about to start racking up expensive claims using your employer-provided benefits: Don’t do it!
The decision to fire an employee doesn’t usually happen overnight. It’s typically a gradual process. Be sure you can show exactly when and how you made the termination decision.
If you are engaged in a reduction in force and rewrite a job description so an older employee is eliminated because she lacks a requirement in the new description, she could sue you and easily win in court.
Sometimes it’s obvious that you are going to have to fire an employee. First, however, you must follow your usual employment and HR procedures. Don’t just go through the motions, and don’t get sloppy!
Q. We fired a worker for poor performance, but we didn’t tell him exactly why. Now he is demanding the discharge reason in writing. What do we do?
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