What Is the Legal Procedure for Terminating an Employee for Improper Behavior?
Unless your employees are in a union or are employed under a collective bargaining agreement, they are "at-will" employees. At-will employment means that employers may fire employees with or without cause, and employees are free to quit at any time. Various laws still dictate procedures employers should follow in order to avoid liability. As long as you are not terminating an employee in violation of the laws described below or any state laws, you are free to fire employees for improper behavior.
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Policies
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Most larger employers have written policies dictating how employee performance is assessed, how employees can be terminated and the general process for termination. You should check human resources materials or personnel policies, as they may guide you on the specifics of how your company terminates employees. These policies may serve as an implied contract between you and the employee, so be sure to review them thoroughly.
Laws
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Employees may not be fired when it violates a federal and state law, including termination based on the employee's age, ethnicity, disability, sex, race, and religion. The Constitution also protects public-sector employees, as they cannot be fired for exercising freedom of speech, religion, assembly or press. Additionally, it is unlawful to fire an employee for missing work to engage in civic duties such as jury duty or military service.
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Other Protections
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Employees have other general protections including laws regarding union activities, and laws regarding wage and hours, equal pay, worker's compensation and health and safety, most of which are generally inapplicable to improper behavior. But if you terminate an employee for any of the above reasons -- for example, firing someone for filing a workers' comp claim -- you could be subject to penalties. Also, there are whistleblower laws which dictate that an employee may not be fired for reporting an employer for violating a law or safety standard.
State Law
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State laws provide another level of protection in most instances depending on the state. For example, in New York it is unlawful to terminate an employee on the basis of creed or marital status. All states have different laws, so be sure to check in your area.
Best Practices
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Some of the best practices for terminating employees include: documenting all pertinent facts regarding the reason for termination, planning the termination meeting, preparing all necessary termination papers in advance, showing the employee respect throughout the process, being direct and honest about termination and offering a separation package or letter of recommendation when applicable.
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References
- HR People; How to Terminate an Employee; Matt Krumrie; June 2008
- University of California; Firing With Dignity; Gregorio Billikopf Encina; November 2004
- Canada One: Terminating an Employee: The Dignified, Legal Way; Christia Thomas; June 1999
- Gogobits.com; How to Legally Terminate an Employee; Robbi Erikson; August 2005
Resources
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