Checklist: General Concerns Related to Termination

While all situations that could occur in the workplace can not possibly be anticipated, the following is a list of things that should be considered. If any answer makes the decision to terminate suspect, you’ll need to consult with in-house counsel or outside counsel immediately, as appropriate. General concerns that need to be addressed in a termination decision are:

• Were any representations made to the person that he or she was not employed as an “at will” employee? What were the representations?
• Did the person give up other employment opportunities by accepting his or her present position?
• Is there a written offer of employment, a letter confirming the terms of the employment, or a contract of employment?
• Will the termination violate any “public policy”? For example, could the employee argue that the “real reason” for his or her termination was the exercising of political beliefs, the exercising of a statutory right, or reporting of the employer to a government agency? Is there an outstanding or settled workers' compensation claim subjecting the employer to a retaliation action?
• What is the employee's tenure? If the person is a long-term employee (e.g., 10 or more years), does the employer “owe” him or her some special consideration?
• Will the termination of the employee prevent the vesting of benefits (e.g., pension or bonus) in the immediate, foreseeable future?
• What is the effect of the termination upon the morale of the department's specific location or the employer as a whole?
• What is the effect of the termination on patient or community relations, or on other business related matters?
• Did the employee's protected status (race, color, religion or generally held religious beliefs, creed, gender, national origin, ancestry, nonjob-related disability, age) arguably have anything to do with the decision and/or will it appear that recent employment decisions are adversely affecting a protected class?
• Has the employer made an offer of reasonable accommodation, taking into account the person's religion or disability?
• Has a thorough investigation been conducted so that the decision is based upon facts and not perception, hearsay or speculation?
• Has the employee been given the opportunity to relate his or her side of the story?
• Are there extenuating circumstances or other mitigating factors that justify a lesser penalty?
• Is the decision timely?
• Should you suspend, pending further investigation?