Dealing with Employees/Not firing.
What are employment laws concerning firing people? I have worked in two places where I've overheard managers tell some employees that if they quit they will not be hired back. If those employees are really so incompetent why not fire them instead of wait and see if they quit? Training new employees isn't cheap either way.
Question: What are employment laws concerning firing people? I have worked in two places where I've overheard managers tell some employees that if they quit they will not be hired back. If those employees are really so incompetent why not fire them instead of wait and see if they quit? Training new employees isn't cheap either way.
Most employees in the United States work "at will." This means that you can fire them at any time, for any reason, unless that reason is illegal. State and federal laws prohibit employers from relying on certain justifications for firing employees, such as discrimination or retaliation. These prohibitions apply whether the employee has an employment contract with you or works at will.
Firing Employees With Employment Contracts
Employment contracts can limit your ability to fire employees.
If an employee has an employment contract -- whether written or oral, express or implied -- that contract may limit your ability to terminate the employee. If an employment contract exists, you must treat the employee fairly and fire the employee only for "good cause." However, it is not always easy to determine if an employment contract exists.
Determining Whether There's a Contract
Before you fire an employee, you must figure out whether you have an employment contract with the employee. Occasionally, this will be as simple as opening the employee's personnel file and seeing a document labeled "employment contract." This type of contract is called an express written contract.
However, employers sometimes create employment contracts without meaning to. This type of contract -- called an implied contract -- binds an employer as much as a written contract does.
Employers create implied contracts when they promise employees something, usually job security. These promises can occur in all sorts of circumstances, such as during a casual conversation with an employee or as part of a discussion in an employee handbook.
No matter how the promise occurs, if a court thinks that the promise has enough weight and that the employee has relied on that promise (usually through continuing employment), the court may view that promise as a contract and require you to hold up your end of the deal.
Figuring out whether you have unintentionally created an implied contract can be a tricky business, but past court decisions do provide some guidance. Courts have found that an implied contract was formed in the following circumstances:
In trying to convince a prospective employee to take a job, an employer promises the employee that he will only be fired if he doesn't do his job well.
An employee manual states that once employees have completed an initial 90-day probation period, they become "permanent" employees.
During an evaluation, a supervisor gives an employee a glowing review and says that he will have a long future at the company as long as his good performance continues.
Don't let the specter of implied contracts worry you too much, however. If you feel certain that you have never promised the employee job security, then chances are good that the employee does not have an implied contract.
Firing an Employee
If you determine the employee does not have a contract, you can fire the employee for any reason that isn't illegal.)
If the employee does have an implied contract, however, you can fire the employee only for "good cause." And if you have an express written contract with an employee and you want to terminate that employee, you must follow what the contract says. Contracts will either list reasons for which the employee can be fired or simply state that an employee can be terminated only for good cause.
The exact meaning of good cause varies from state to state, but generally it means what it says: You must have a "good," meaning legitimate, reason for firing the employee. Usually that means the termination must be based on reasons related to business needs and goals. Firing an employee because you don't like the fact that she has an illegitimate child, for example, isn't good cause. Firing an employee because he harasses female coworkers is.
Examples of good cause include the following:
poor job performance
refusal to follow instructions
excessive absences from work
possession of a weapon at work
threats of violence
violating company rules
stealing or other criminal activity
endangering health and safety
revealing company trade secrets
disrupting the work environment
preventing coworkers from doing their jobs, and
Good Faith and Fair Dealing
Regardless of what type of contract you have with the employee, that contract will obligate you to treat an employee fairly. This obligation is called the covenant of good faith and fair dealing. Although this rule might seem like a gaping hole in your ability to terminate employees, it really isn't. To breach this obligation, employers have to engage in very egregious conduct, such as:
firing employees to prevent them from collecting sales commissions
firing employees just before their retirement benefits vest, or
fabricating evidence of poor performance to justify firing the employee.
This article provides an overview of the most common illegal reasons for firing employees. For detailed information on whether and how to fire an employee
Dealing With Problem Employees
A Legal Guide
Handle employee problems effectively, without getting into legal trouble. Dealing With Problem Employees provides proven techniques that will help you get employees back on track. Learn how to:
investigate problems and complaints
conduct performance evaluations
fire employees, if necessary
handle severances and references
Manage employee problems, legally and effectively
Every workplace has occasional problems with employees. This book is packed with the legal and practical information you need to handle those problems without getting into legal trouble. It provides proven techniquesand immediate solutions. Find out how to quickly and legally:
manage performance issues
investigate problems and complaints
help problem employees get back on track
fire employees if necessary
handle severances and references
avoid hiring problem employees in the future
This new edition of Dealing With Problem Employees is completely updated to reflect the latest employment laws in every state. It provides sample policies, forms and checklists to help you at every step.
"Offers proven techniques for creating a trouble-free workplace and offers immediate fixes for handling your problem employee of the moment."
-Small Business Opportunities
"Particularly valuable to startup ventures and small companies that do not have human resource departments."
Make sure you cover all your bases first ...this guide to legalities of evaluations, discipline, complaint investigations, terminations and service can help make sure that you do.
Sample hiring letter preserving at-will relationship
Sample employee performance log
Sample performance evaluation
Blank performance evaluation form
Sample documentation of misconduct
Sample written reprimand
Sample progressive discipline policy
Sample company complaint policy
Sample written investigation report
Firing checklist (to determine if its legally safe to fire)
Company property (to retrieve from the terminated employee) checklist
Termination meeting checklist
Federal law makes it illegal for most employers to fire an employee because of the employee's race, gender, national origin, disability, religion, genetic information, or age (if the person is at least 40 years old). Federal law also prohibits most employers from firing someone because that person is pregnant or has a medical condition related to pregnancy or childbirth..
1. Title VII of the Civil Rights Act.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e and following) prohibits employers from discriminating against applicants and employees on the basis of race, color, religion, sex, and national origin (including membership in a Native American tribe). It also prohibits employers from retaliating against an applicant or employee who asserts his or her rights under the law.
Title VII prohibits discrimination in all terms, conditions, and privileges of employment, including hiring, firing, compensation, benefits, job assignments, promotions, and discipline. Title VII also prohibits practices that seem neutral but have a disproportionate impact on a protected group of people. Such a practice is legal only if the employer has a valid reason for using it. For example, a strength requirement might be legal -- even though it excludes disproportionate numbers of women -- if an employer is using it to fill a job that requires heavy lifting. Such a requirement would not be valid for a desk job, however.
Title VII makes it illegal to harass someone on the basis of a protected characteristic (race, sex, and so on). For information on sexual harassment and tips on preventing it,.
Title VII applies to employers that fit into the following categories:
private employers with at least 15 employees
state governments and their political subdivisions and agencies
the federal government
labor organizations, and
joint labor-management committees and other training programs.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII. The EEOC has offices throughout the country.
2. Age Discrimination in Employment Act.
The Age Discrimination in Employment Act (ADEA) can be found at 29 U.S.C. 621-634. It prohibits discrimination based on age against employees who are at least 40 years old. It also prohibits employers from retaliating against an applicant or employee for asserting his or her rights under the ADEA.
The ADEA prohibits age discrimination in all terms and conditions of employment, including hiring, firing, compensation, job assignments, shift assignments, discipline, and promotions. A separate law, the Older Workers Benefits Protection Act (OWBPA), protects employees over the age of 40 from discrimination in benefits.
The ADEA applies to private employers with at least 20 employees, the federal government, interstate agencies, employment agencies, and labor unions. Although the ADEA also protects state government employees, these employees may not file lawsuits claiming age discrimination -- they may assert their rights only through the Equal Employment Opportunity Commission (EEOC).
The EEOC enforces the ADEA.
3. Americans With Disabilities Act.
The Americans With Disabilities Act (ADA) can be found at 42 U.S.C. 12101-12213. It prohibits employers from discriminating against people with disabilities in any aspect of employment, including applications, interviews, testing, hiring, job assignments, evaluations, compensation, leave, benefits, discipline, training, promotions, medical exams, layoffs, and firing. (.)
The ADA protects not only applicants and employees with disabilities; it also protects those who have a history of disability and those who are perceived -- incorrectly -- as having a disability. For example, an employee who was diagnosed with cancer and has been in remission for ten years may not have a current disability, but his employer is still prohibited from making job-related decisions based on the employee's former disability. Similarly, an employee who walks with a limp may not have a disability, but an employer who makes job-related decisions based on the mistaken belief that the employee is disabled (for example, by refusing to promote the employee to a managerial position that would require her to walk a shop room floor) violates the ADA. The ADA also prohibits employers from discriminating against someone because that person is related to or associates with someone who has a disability.
The ADA applies to private employers with at least 15 employees, local governments and their agencies, employment agencies, and labor unions. Although state employees are protected by the law, these employees may not sue their state government employers for monetary damages. A separate law, the Rehabilitation Act, protects federal employees from disability discrimination.
4. Equal Pay Act.
The Equal Pay Act (29 U.S.C. 206(d)) requires employers to give men and women equal pay for equal work. Employees do equal work when they perform, under similar working conditions, jobs that require equal skill, effort, and responsibility. Two jobs may be equal even if they have different job titles. For example, a hotel may not pay its janitors, who are primarily men, more than its housekeepers, who are primarily women, if they are doing the same work.
There are a few exceptions to the Equal Pay Act. Employers can pay men and women different salaries for doing equal work if the difference is based on seniority, merit, an incentive system, or any factor other than gender.
Practically speaking, all employers must comply with the Equal Pay Act. This includes private employers (regardless of size), the federal government, state and local governments, and labor unions.
The EEOC enforces the Equal Pay Act.
5. Immigration Reform and Control Act.
The Immigration Reform and Control Act of 1986 (IRCA) can be found at 8 U.S.C. 1324. IRCA prohibits employers from discriminating against applicants and employees on the basis of their citizenship or national origin. IRCA's prohibition on discrimination applies to all terms, conditions, and privileges of employment, including hiring, firing, compensation, benefits, job assignments, promotions, and discipline. This antidiscrimination provision applies to federal, state, and local governments and to private employers with at least four employees.
IRCA also makes it illegal for employers to knowingly hire or retain employees who are not authorized to work in the United States. Employers are required to examine employee documents and keep records verifying that their employees are authorized to work in this country.
IRCA is enforced by the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices.
6. Civil Rights Act of 1866 (Section 1981).
The Civil Rights Act of 1866 (commonly referred to as Section 1981 because of its location in the United States Code) declares African Americans to be citizens, entitled to a series of rights previously reserved to white men. The law confers a number of rights, including the right to sue or be sued in court, to give evidence in a lawsuit, and to purchase property. It also confers the right to make and enforce contracts, which courts have found prohibits racial discrimination in the employment relationship.
Although the law's original purpose was to protect African Americans, courts have interpreted it to protect people of all races from discrimination and harassment. Section 1981 has also been interpreted to prohibit discrimination on the basis of ethnicity, if the discrimination is racial in character.
Section 1981 protects all private employees and all employees of state and local governments. It also protects independent contractors from discrimination by hiring firms and protects partners in a partnership from discrimination. It does not apply to federal employees, however.
No government agency enforces Section 1981 or takes complaints of violations of the law. Employees or applicants who believe their rights under Section 1981 have been violated may file a lawsuit in state or federal court.
7. Genetic Information Nondiscrimination Act.
The Genetic Information Nondiscrimination Act (GINA) can be found at 42 U.S.C. 2000ff and following. This 2008 law prohibits employers from using an applicant's or employee's genetic information as the basis for employment decisions and requires employers to keep genetic information confidential.
GINA also prohibits employers from requiring or asking employees to provide genetic information. The law includes exceptions for information the employer learns inadvertently, information gathered pursuant to the certification requirements of the Family and Medical Leave Act, and information used for genetic monitoring, among other things. Even if one of these exceptions applies, however, the employer must keep the information confidential and may not use it when making employment decisions.
GINA applies to:
private employers with at least 15 employees
the federal government
private and public employment agencies
labor organizations, and
joint labor-management committees.
The EEOC enforces GINA.
Most states also have antidiscrimination laws that prohibit firing for all of the reasons listed in the federal law. Many state laws include additional prohibitions (for example, some state laws prohibit discrimination on the basis of sexual orientation or marital status), and they cover a wider range of employers.
Employment Discrimination in Your State
Your state's discrimination law may protect more employees -- and apply to smaller employers -- than federal law.
Federal laws protect employees from discrimination based on race, color, national origin, sex, religion, disability, genetic information, citizenship status, and age (if the employee is at least 40 years old). These laws apply only to employers of a certain size. For example, Title VII of the Civil Rights Act of 1964, the main federal law prohibiting discrimination, applies only to employers that have at least 15 employees.
Some states have enacted laws that go further. In some states, for example, the law prohibits discrimination on additional grounds, such as sexual orientation, marital status, or weight. And, some states apply to smaller employers. If your state offers additional rights to employees, you are entitled to those protections. To find out your state's rules on discrimination, select it from the list below.
Select your state to learn about your state's laws.
It is illegal for employers to fire employees for asserting their rights under the state and federal antidiscrimination laws described above. An employee can bring a retaliation claim even if the underlying discrimination claim doesn't pan out. For example, if you fire an employee for complaining that you denied a promotion because of race, you could lose a retaliation lawsuit even if a judge or jury finds that your promotion decision was not discriminatory..
Preventing Retaliation Claims by Employees
You can't retaliate against employees for complaining about harassment or discrimination.
When an employee complains about discrimination or harassment -- to you, to a government agency, or to someone within your business -- you must treat that employee with care. If you take any action that the employee might view as punishment or retaliation for the complaint, you might find yourself on the wrong end of a lawsuit.
All employers, managers, supervisors, and human resources representatives should become familiar with the law of retaliation, because retaliation claims are becoming more and more common. And they are also becoming more costly.
Retaliation means any adverse action that you or someone who works for you takes against an employee because he or she complained about harassment or discrimination. Any negative action that would deter a reasonable employee in the same situation from making a complaint qualifies as retaliation.
Employees who participate in an investigation of any of these problems are also protected -- for example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim.
Even if the original complaint of discrimination or harassment turns out to be unfounded, an employee who can prove that something negative happened because of the complaint can still win a retaliation claim. You also may not punish employees for participating in an internal investigation of harassment.
Adverse action includes demotion, discipline, firing, salary reduction, negative evaluation, change in job assignment, or change in shift assignment. Retaliation can also include hostile behavior or attitudes -- by you or someone who works for you -- toward an employee who complains. Sometimes, an employee can claim retaliation if another employee complains. For example, the Supreme Court has held that a man who was fired shortly after his fiance (who worked for the same employer) filed a discrimination charge could sue for retaliation.
Retaliation Need Not Be Intended
Although retaliation obviously includes any action that you take with the intent to harm or punish the employee for complaining, it can also include actions that you take with the best of intentions, if those actions have a negative impact on the employee.
A female employee complains that her supervisor is sexually harassing her. In response, you change the employee from the day shift to the night shift so that she doesn't have to work with the supervisor any more. Even though you didn't intend to hurt the employee, this action could be retaliatory if the employee preferred the day shift.
An African-American employee complains to you that the store in which he works is racially hostile toward him because his coworkers tell racial jokes and call him racially derogatory names. In response, you transfer the employee to another store. This action could be retaliatory if the new store is farther from the employee's home or the position is less desirable in some other way.
In both of the above examples, the employer made the mistake of focusing on the complaining employee rather than focusing on the wrongdoer. When someone complains about something unlawful in the workplace, the employer's job is to fix the problem -- not avoid it by removing the complaining employee from the situation. By changing the job conditions of the employee who complained, the employer took actions that could be viewed as retaliatory.
Strategies to Prevent Retaliation
As soon as someone complains about discrimination or harassment in the workplace, you must take some precautionary steps:
Establish a policy against retaliation. Even before an employee complains, you should have a clear policy against retaliation. Your policy should spell out exactly what retaliation is, and it should make perfectly clear that you will not tolerate retaliation from any of your managers or other employees. It should also tell employees what steps to take if they feel they are being retaliated against.
Communicate with the complaining employee. Explain that you are taking the complaint seriously. Tell the employee that you want to hear about anything that happens that the employee considers hostile or negative. Refer the employee to your antiretaliation policy. Explain what retaliation is. Tell the employee flat out that you won't tolerate retaliation from anyone in the company.
Keep confidential any complaints that you receive. The fewer people who know about a complaint, the smaller the chances are that someone will retaliate against the complainer. Of course, when you investigate the employee's complaint, you will have to tell some people about it. Make sure that you tell only the people who absolutely need to know. And, when you tell them, explain what retaliation is and tell them that you won't tolerate it. Document, document, document. Take notes of everything you do to prevent retaliation. Send the complaining employee a letter confirming what you have told him or her about retaliation.
Handling Discipline Problems
An adverse action is retaliatory only if it is taken because the employee complained. You are free to take actions against an employee for other reasons, even if that employee has complained about discrimination or harassment.
You can give a negative evaluation to an employee with performance problems.
You can discipline an employee who is always late to work for tardiness.
You can fire an employee who brings a gun to work.
The problem for employers is that some employees will claim that these adverse actions are retaliation, even if they have nothing to do with the employee's complaint.
If you must take adverse action against an employee who has complained, be prepared to show that you had valid reasons for discipline, unrelated to the complaint. Those reasons should be supported, if possible, by prior documented warnings to the employee.
Refusal to Take a Lie Detector Test
The federal Employee Polygraph Protection Act prohibits most employers from firing employees for refusing to take a lie detector test. Many state laws also set out strong prohibitions against using lie detector tests.
The federal Immigration Reform and Control Act (IRCA) prohibits most employers from using an employee's alien status as a reason for terminating employment, as long as that employee is legally eligible to work in the United States..
Complaining about OSHA Violations
The federal Occupational Safety and Health Act (OSHA) makes it illegal for employers to fire employees for complaining that work conditions don't meet state or federal health and safety rules.
Violations of Public Policy
Most states prohibit employers from firing an employee in violation of public policy -- that is, for reasons that most people would find morally or ethically wrong. Of course, morals and ethics can be relative things, so the law varies from state to state. A termination decision that might be allowed in one state might be prohibited in another.
Despite this relativity, most states agree that the following reasons for termination would violate public policy and would therefore be illegal:
terminating an employee for refusing to commit an illegal act (such as refusing to falsify insurance claims or lie to government auditors)
terminating an employee for complaining about an employer's illegal conduct (such as the employer's failure to pay minimum wage), and
terminating an employee for exercising a legal right (such as voting or taking family leave).
Wrongful Termination Fears
Despite following these guidelines, you might still fear being sued for wrongful termination after you let an employee go. You can protect yourself by asking that employee to sign a "release," or agreement not to sue.
Using Severance Agreements to Avoid Lawsuits
If you fear a wrongful termination claim, consider asking a terminated employee to sign a release.
Firing workers is never pleasant. But sometimes, you know that firing a particular employee will be especially difficult and might even result in a lawsuit. Perhaps the employee stirs up a lot of trouble in the workplace, or maybe you've made some mistakes in managing the employee and have good reason for concern if a judge or jury later reviews your decisions.
Whatever the reason, if you are worried about being sued by a terminated employee, you might want to consider asking the employee to sign a release: an agreement not to sue you in exchange for receiving certain benefits. Some employers routinely ask their employees to sign a release as a condition of receiving a severance package. Other employers ask only those employees who might have a legitimate legal claim against the company, or who seem especially motivated to sue, to sign a release.
Because some states have specific requirements about what language must go into a release, you should consult an attorney for help in crafting a legal agreement that will meet your needs. Keep in mind the following general considerations:
You must give the employee something in exchange for the release. You are asking the employee to waive the right to sue you, and that right is worth something. This means that if you ordinarily offer a severance package to those employees who are not asked to sign a release, you will have to give something extra to employees who do sign. Specify what you will provide (typically, a sum of money) in the release.
Be clear about the rights the employee is waiving. You might state that the employee is waiving any right to sue you for claims arising out of the employment relationship, including the termination of that relationship. In any case, make sure the release is specific enough to forestall any later claim that the employee did not know what it covered -- and comprehensive enough to cover every claim the employee might conceivably raise.
Give the employee plenty of time to decide whether to sign. It is reasonable for an employee to take a week or two to decide whether to give up the right to sue you. You might even suggest that the employee consult with a lawyer to review the agreement.
Avoid any hint of coercion. An employee's decision to sign a release must be voluntary, or courts will not enforce the release. Don't threaten or talk tough with your employees to convince them to sign; you won't be gaining anything if your release gets thrown out of court.
Special rules apply to older workers. If the employee is 40 years of age or older, a federal law -- the Older Workers Benefits Protection Act (OWBPA) -- dictates what must be included in a release. Among other things, you must give these employees a longer period of time to review the release, allow them to revoke the agreement (in other words, to change their minds) for a limited time after they sign, and advise them in writing to consult with an attorney.