Thanks to your friends in government, you need to carefully consider any potential termination from a legal perspective. If you aren’t sure where you would stand legally should a terminated employee bring suit, then consult an attorney before you take any action against that employee. To do otherwise would be “penny wise and pound foolish.”

Although there aren’t any laws in the United States that take away the right of employers to fire employees for cause, including unsatisfactory quantity or quality of work, you still face a significant legal risk every time you fire someone.

Termination Makes People Furious and Litigious

Why? Once you fire an employee, you have typically engaged the person’s fury. This person seldom believes that his or her performance was as poor as you have claimed. Someone who decides to pursue “justice” through the courts will generally claim discrimination. Antidiscrimination laws protect women, anyone over the age of 40, physically challenged persons, minorities, gays, and many other groups. Some form of legal discrimination protection blankets just about 80 percent of the national workforce.

Courts, especially juries, tend to be highly sympathetic to fired employees. This sympathy is magnified if the fired employees remain unemployed or if they are older workers.

Understanding Discrimination Law Is Vital

You and your supervisors should know the law inside and out. Go one step further and make sure that all supervisors really believe in the importance of fighting discrimination—on both a practical and a subconscious level.

You need to remember that abiding by the law and being able to prove to a hostile jury that you have done so are two very different things. If you end up in court, you need to have a rock-solid case against any employee you fire. You should take whatever preventive steps you can to avoid the possibility of a suit altogether.

Create a paper trail long before termination is seriously considered. Write summaries regarding specific performance problems that were cited via direct verbal warnings to the employee and file a copy in his or her employment records. Ideally, try to issue two more written warnings before firing someone.

If the employee knows and appreciates that you have tried to work with her toward improving her job performance, then it can decrease the chance of a lawsuit.

How you handle a problem employee’s performance reviews are critical. The recent reviews should not be positive. This is often a problem because employers, supervisors, and managers hesitate to write and present to an employee a negative review, even if such a review is warranted. If, during the review process, you give into the human temptation to say something like “your work really isn’t all that bad” or “I know your work is improving,” you are planting the seeds of a discrimination suit.

Another potential problem you should be aware of is how you handle reference calls for a former, and fired, employee. If you give out any information on such an employee, other than dates of employment and a salary confirmation, you risk a lawsuit. There was even an instance where a company lost a suit brought by a terminated employee because a good reference was supplied but the employee felt, and the jury agreed, that the reference wasn’t good enough!

Takeaways You Can Use

  • Many employees consider suing, whether it’s justified or not.
  • Carefully think through any firing in advance.
  • Try to issue warnings before firing someone.