Ready, Aim, Fire!...but Carefully

Navigate The Liability Minefield To Reduce The Risk When Terminating An Employee

by John Gilbert

Employers operate in a minefield of legal regulations and potential liability when it comes to terminating an employee. Sometimes employees just don’t work out. Sometimes employers are confronted with “trouble” employees.

Whatever the reason, employers must navigate the liability minefield to reduce the risk and severity of liability should an employee file a claim against an employer, even if the employer has taken all recommended steps with regard to termination.  Remember that every employee thinks he or she has the best case ever when it comes to a claim against an employer for termination.  

Caveat: Even employers who take the steps outlined in this article may still find themselves on the receiving end of a claim.

Among the laws that create the metaphorical minefield are laws governing discrimination (Title VII, Equal Pay Act, Age Discrimination in Employment Act, Americans with Disabilities Act, Genetic Information Nondiscrimination Act, and state anti-discrimination laws), veterans protections under the Uniformed Services Employment and Reemployment Rights Act, workers compensation and common law, such as the torts of retaliatory discharge and intentional infliction of emotional distress.

To optimize an employer’s case in the event that an employee files a claim, here is how to fire someone:

1. Have a darn good reason and think it through.

2. Build the case. Make sure you obtain all the facts in support of a decision to terminate.  Thoroughly investigate all aspects of the termination decision, leaving no loose ends.  This is not the time to be lazy or take shortcuts. Talk with the witnesses. Obtain statements. Make reports. Build the factual justification for termination.

3. If you have company policies that govern the basis on which you have decided to terminate an employee, follow them to the letter. This advice also applies to collective bargaining agreements.

4. Take the personal element out of any termination decision. The decision should be as objective as possible, and the company should even consider making the decision-maker someone other than the person directly involved in the termination case.  

5. This last guideline I call “Gilby’s Shortcut” to evaluating your risk of liability in a termination decision (using my college and law school nickname). Here it is: Step back from the decision and ask yourself this question: “What will six to 12 people who have no connection to this matter think about your decision three to five years from now?”

I think you see my point. If you end up in a jury trial, six to 12 impartial, and total, strangers will be second-guessing your decision at a time when the decision is not so serious and in circumstances under which the six to 12 people have no personal concern about your company and have no connection to you.  

Be sure to consult your human resources personnel and your labor and employment attorney for guidance before you pull the trigger. Here’s where the old adage “An ounce of prevention is worth a pound of cure” truly applies. n

John L. Gilbert (jgilbert@sandbergphoenix.com) is an attorney with the law firm Sandberg Phoenix & von Gontard P.C. He can be reached at 618.659.9861 or visit www.sandbergphoenix.com