How can legal pitfalls during terminations be avoided?

After the termination decision has been made and supported by an investigation, a very important legal review must take place. This applies whether the termination is for illegal or improper behavior, poor performance or to eliminate a position. It will show whether or not the termination is on solid legal ground.

Employment at will. The concept of employment-at-will controls most employment relationships in every state except Montana. Under an employment-at-will relationship, an employee is employed for an indefinite period of time, and either the employee or the employer can end the relationship-at any time and for almost any reason. In other words, an employee who does not have an express employment agreement-either written or oral-can be terminated at any time, for almost any reason or for no reason at all.

Employees-and their lawyers-have attacked the at-will rule claiming that the usual results of employment at will are harsh, unfair, and morally and socially wrong, thus, giving rise to certain exceptions to the at-will doctrine. These include:

• Public policy.

• Implied contract.

• Good faith and fair dealing.

For more information on employment at will, begin at What is employment at will? at ¶66,010 .

Basic rules. The best way to win a lawsuit is to avoid it in the first place. By keeping in mind some basic management, and interpersonal, rules, employers can go a long way toward lessening the anger of a discharged employee who might vent his wrath in a courtroom. Here are just a few pointers.

• Don't fire an employee for a reason that seems to violate some basic principle of law or social justice. In some instances, the reason may be clear-for example, discharging an employee for serving on jury duty. Other instances may be less clear. But, if it feels wrong to fire an employee who has just reported you to the health department for spoiled milk that you know you sold, don't fire that employee.

• Don't make promises of job security or disciplinary measures to be followed. Your employer could be held to them. If you make statements to entice prospective employees to take a job, be prepared to live up to them.

If you treat employees as human beings and as you would want to be treated, you often can avoid trouble. An employer that maliciously discharges an employee in an attempt to retain commissions or bonuses that the employee has rightfully earned is asking for a lawsuit. Be fair.

Other legal constraints. Employers have long been restricted by federal and state laws in their ability to freely discharge employees. Federal laws cover discharges based on union activity, race, color, religion, sex, national origin, citizenship, age, disability, veteran status and garnishments.

Many other federal laws give protection to employees who have been discharged for asserting rights under wage, occupational health, veterans reemployment, federal jury duty, environmental protection, family leave, whistleblower protection and other laws.

Employees may claim that their termination was in retaliation for exercising rights under the laws above, and retaliation may look likely if the termination is within six months of the protected activity. The further away from the six-month mark a termination occurs, the less likely retaliation will be raised as an issue.

State laws protecting employees. States also protect employees from unlawful discharge in many areas, such as serving on jury duty or refusing to take a lie detector test. State law may permit employees facing discipline to see their personnel files and to obtain notice of the employer's reasons for termination. Other laws require notice of plant closure. Many states also have their own labor relations, EEO, safety and wage laws offering protection from discharge. Be sure to check State Laws for the law(s) that apply in your state(s).

This brief review of these restrictions shows how important it is to know about federal and state law limitations and to consult with Human Resources or your supervisor before taking any action.