Firing “At-Will” Employees: How to Protect Yourself
With “at-will” employment, do you actually need a reason to fire someone? The answer is YES!
That is, unless you can guarantee the employee knows exactly why you fired him or her. You must have absolutely no doubt they think their firing was not because of age, sex, religion, national origin and other protected classes.
The “at-will” employment principle means employers can terminate employees without showing cause or even have no reason at all.
However, you had better been sure that you not only had a strong reason, but that it was also lawful and well documented. Defending a charge of violation of an employee’s civil rights, you need to declare a valid reason for your action, as well as proving—in a court of law—that your actions are permitted, true and without prejudice.
When hiring, the last thing on your mind is discipline or termination. However, some employees simply do not work out.
Some things to consider when deciding to terminate (or discipline) an employee, even in an “at-will” situation:
Before firing, perform a pre-termination (or discipline) evaluation:
- Was the employee engaged in protected activity—i.e. harassment or worker’s compensation claims.
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Is the employee in a protected class—things like race, sex, religion or age—or have they made protected complaints? You must show the reason for the firing is unrelated to the classification.
- Is there proper documentation of the offense or issue? Always record attendance issues, prove you applied progressive discipline. Make sure you question any witnesses to the alleged violation.
- Have you informed the employee of the rules and warned them of the penalties for violations of those rules?
- Are your actions consistent? What have you done in the past—warnings, disciplining and firing others in similar situations? More importantly, did you not punish (or are not firing) others for similar offenses?
- Is the penalty fitting for the crime?
You may not need “just cause” for firing (or disciplining) employees—outside of unions, which include that requirement—you should still consider some similar issues:
- Proper notification of the rule or policy
- Forewarning of consequences of violations
- Did you perform an investigation? If you did, was it fair or impartial?
- What evidence do you have? Is there substantial evidence of guilt, or was it from experience and instincts?
- Progressive discipline such as warnings, suspension, termination
- Suspension, either with or without pay
- Option to leave voluntarily
- Are there any another possibility, other than termination?
- Why are you firing them—is it an issue of conduct or character?
Determine if you can fix the problem through discipline—a single event, as opposed to a personality flaw that is likely repeatable, like a pattern of racial or sexual slurs.
Firing is appropriate where there are issues that could appear again, or likely to occur repeatedly. Progressive discipline may not help in every case.
If you still think firing is the right way to go, follow a few basic recommendations when informing the employee of the decision:
- Have witnesses to the proceedings. There should be at least on reliable company witness at the meeting. This will come in handy, to testify if the firing should go to court.
- Make sure you are clear to the employee; they must know exactly why you are firing or disciplining them. You need to have a clear idea of reasons and grounds for the firing.
- Give the employee an opportunity to respond. The employee could have a reasonable explanation, even something that might change your mind. If you properly document, progressively disciplined, gave appropriate notification and adequately reviewed all of the pertinent facts, you should certainly allow yourself an opportunity to hear their explanation. Who knows? You could rethink the firing decision, especially if new, reliable information becomes available.
- Document everything! The only guaranteed way to defend a claim of employment discrimination in court is with good documentation. Take notes of every meeting and everything said. You always should have something in writing, supporting why you are taking action in the first place.