The decision to terminate an employee is almost never an easy one. Once the decision is made, there are steps that can be taken to reduce the risk of an employee filing a wrongful termination lawsuit against you. As the majority of states are “Employment at Will” states, that does not restrict a former employee from filing a wrongful termination lawsuit against you. Under that law in most states, if there is no employment contract, workers are employed on an “at-will” basis. This essentially means that employers have the right to terminate employees at any time for any reason other than discrimination, and rightly so, employees have the right to leave the organization at any time.
The decision to terminate an employee should not come without prior warnings. The steps leading up to the termination should be documented in the personnel file of the employee. This should include the employee’s signed statement that they received a copy of the employee handbook detailing the company’s policies and procedures, verbal and written warnings, performance evaluations, and any other materials that the company deemed necessary to show disapproval of the performance, actions, or behavior of the employee.
Having this information can become very useful to establish a pattern that the employer has tried to counsel the employee for the better. The EEOC requires that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination.
Regardless of the decision and the documentation that has been made for the employee, they may feel that they were unjustly targeted and still try to find other ways to justify a wrongful termination. Once the decision to terminate has been made, there are several factors that employers should consider before executing the decision.
The employer should consider whether or not the employee:
- Has filed a workers compensation claim?
- Are they pregnant or have recently given birth?
- Are they over the age of 40?
- Have they taken any type of leave in the past year?
- Their racial or ethnic background?
- Have they recently filed a grievance or made a complaint about something?
Considering these factors could put employers in a better position to defend themselves against a wrongful termination lawsuit. Be sure to have all documentation in place to prove the termination was not based on one of the above factors. After the matter is finalized, be sure to protect the interest of the company by securing all equipment and codes given to the employee. You can read more about ways to protect yourself against Employee Sabotage.