Firing an Employee


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In most jurisdictions, an employer and employee are free to terminate their relationship at any time, for any reason. Sometimes called “at will,” this arrangement sounds simple. But the ramifications are far from it.

Most of us are aware that employees cannot be terminated based on their race, gender, age or disability. However, there are a number of other exceptions to the “at will” rule based on state and federal statutes. For instance, lesser-known laws provide protection for employees who are absent due to jury duty, military service or attendance as a witness in a criminal trial. Some states have limits on the use of criminal history in hiring and firing decisions. Others have protections based on employees’ sexual preferences and sometimes municipal law conflicts with state law. Suffice it to say that even an “at will” employer better have a well-documented cause before terminating anyone.

The key to avoiding litigation is good planning, knowledge and investigation.

Employment termination by the employer normally falls into one of these categories: redundancy, misconduct, or poor performance (which may be due to various reasons, often not the fault of the employee). The central principles (not the process detail) for dealing with all of these situations are broadly similar.

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