LEGAL TO DISCHARGE – OR NOT?
1. “Employment at will” allows firing employees for any reason not limited by contracts,
State or federal laws, or discriminatory or other illegal reasons.
2. Employees can be fired for violations of policies listed in employee handbooks as
cause for discharge.
3. Employees can be fired for poor performance or other documented reasons, given that
they have been notified of the problems and given a chance to correct them.
4. Employees cannot be fired based on:
- Discrimination by age, sex, race, disability, marital status, national origin, color,
religion, etc.
- Retaliation for safety or discrimination complaints, workers’ comp claims, union
activities, time off for jury or military service, etc.
5. Prior to any conversations regarding warnings or discharge, contact Human Resources.
- Investigate and document the situation carefully and objectively.
- Review facts and documentation supporting discharge with HR
- Proceed only if HR agrees that discharge is called for (AVP must approve
discharge)
- Follow HR’s recommendation if case is not clear cut
Decision Made to Discharge - Conducting the Meeting
1. A representative of HR must be present at the meeting.
2. Explain exactly what is happening and why
- Review prior warnings or lack of improvement and any documentation
- Don’t make promises you can’t keep regarding benefits or another job
3. Present the facts clearly, in a calm, businesslike way
- Don’t mention the employee’s age, sex, etc., in any manner
- Stay calm and firm if the employee reacts emotionally
- Anger, tears, and other reactions are common and understandable
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QUESTIONS TO ASK BEFORE DISCHARGING AN EMPLOYEE
Have the violations been thoroughly documented and investigated?
Yes
No
Are there objective facts to support the discharge?
Yes
No
Has the employee been told immediate and sustained improvement must
occur or further disciplinary action can result, up to and including
termination?
Yes
No
Is the violation so serious that it requires immediate discharge?
Yes
No
Does the employee know the appropriate policies and penalties?
Yes
No
Has there been a serious, documented effort to help the employee correct
the behavior or performance?
Yes
No
Have other employees been discharged for the same violation?
Yes
No
Are there any mitigating circumstances in the employee’s history or
situation?
Yes
No
Has the employee received an objective, open-minded hearing of his/her
side of the story?
Yes
No
Has this employee been allowed to get away with this behavior in the past?
Yes
No
Have other employees been allowed to get away with this behavior in the
past?
Yes
No
Has the employee exercised legal rights for which this could be considered
retaliation?
Yes
No
Has the employee been treated fairly, without bias or discrimination?
Yes
No
Would an objective outsider agree that there is documented cause for
discharge?
Yes
No
Have I involved Human Resources in the determination to discharge?
Yes
No
Review all answers and address any issues or concerns with Human Resources. Answers
are underlined – and in most instances, would be the appropriate ones.
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