Fire the Bumby Matt Dickstein (Matt Dickstein, Business Attorney)
In this article I will give you a quick overview of the legal analysis for firing an at-will employee.
I will assume the employee is “at-will,” meaning that you have not entered into an employment contract with the employee. You can fire an at-will employee for any reason or no reason at all (with restrictions – see below).
First, make sure the employment is really at-will. Call me if an oral or written employment contract exists, if you have made promises to the employee about his or her security, or if your company handbook has special termination policies.
Second, know your risks. Your risk when firing an employee is that the termination is deemed wrongful, that is, made on illegal grounds. Wrongful termination is a tort, and a big-ticket liability item. Further, even if you have legal grounds to terminate employment, nothing can stop the employee from suing you. Defending a lawsuit is expensive.
Third, if employment is at-will, you may fire the employee for any reason or no reason, including poor performance. That said, you may not terminate employment for any of the following reasons:
•On account of a protected status. The protected statuses that you should worry about are: *race, *religion, *gender, *pregnancy, *age over 40, *disability, *sexual orientation, and *national origin and status as alien (so long as the employee is legally permitted to work).
•On account of the employee engaging in some protected activity. For example, you may not fire an employee for complaining about workplace health or safety, whistle-blowing, refusing to commit fraud or falsify documents, or filing a workers compensation claim.
Fourth, investigate the facts surrounding the termination, and make sure the employee’s personnel file supports the termination. Think through the decision fully and carefully.
Fifth, timely deliver the final paycheck and other termination notices and forms.