A wrongful termination checklist can help an employer avoid practices that could lead to a wrongful termination lawsuit. To ensure an employee is treated fairly, employers should consult the checklist when contemplating an employee termination. The checklist should include the anti-discrimination regulations imposed by federal and state wrongful termination laws, as well as steps to take to uphold at will employment.
Pre-termination checklist
The following questions should be referred to when considering an employee termination:
• Can the termination be based on race, color, national origin, religion, sex, pregnancy, or age? The U.S. Equal Employment Opportunity Commission (EEOC) enforces the laws that prohibit discrimination in these categories. Employers must follow these laws if they have 15 employees or more (or 20 employees or more for age-related discrimination laws). States may offer additional anti-discrimination laws concerning sexual orientation, marital status, and more.
• Can the termination be based on a physical or mental disability or on a failure to accommodate an employee's disability? The Americans with Disabilities Act prevents employers with 15 or more employees from discriminating against disabled employees who are qualified to perform a job with or without reasonable accommodations. This includes modifying equipment, adding ramps, or moving the employee to another position. Disabled employees include those infected with AIDS or HIV but not those who abuse illegal drugs or alcohol.
• Is the termination in retaliation for a legitimate employee action? Laws prohibit firing an employee if he or she is engaged in anti-discrimination charges or proceedings, is taking authorized leave, or has recently exposed illegal activity within the company.
• Is the termination in violation of public policy? An employee can't be terminated for seeking workers' compensation, refusing to participate in illegal practices, exercising union rights, or pursuing other legal rights.
• Does the termination violate a contractual obligation? Employers may provide employees with specific written contracts that specify terms of dismissal, or implicit contracts, such as employee manuals, that include information about termination. If either contract is breached when an employee is fired, it may be wrongful termination.
• Have the reasons for termination been documented? There is an implied agreement that employers should treat employees honestly, fairly, and ethically, especially long-term employees. Often courts look at past practices and seniority when evaluating cases of wrongful termination.
Steps to take to ensure "at will" employment
The Employment at Will Doctrine, accepted in all states, permits an employer to terminate an employee for no specific cause. To maintain its authority, employers must make clear in all communications that employment is at will. This may include:
- Adding a disclaimer in your employee manual that termination is at the employer's discretion
- Keeping records of job performance and documenting all problems
- Avoiding giving cause for termination if not needed
- Consulting a lawyer prior to termination if a case is complex
For more information visit avvo.com