Letting an employee go is challenging for everyone involved. With such a life-changing event, many in the business world feel it is prudent to be as open, honest, and prepared as possible for the way the terminated employee might respond to their termination.
Right to Work and At Will
Even in right to work states, employment contracts should spell out very specifically the length of the employment offer; if an offer of continuance will be made at the conclusion of the contract and under what circumstances; and if there are behavioral conditions that will lead to immediate termination.
“At Will” employment can be interpreted differently in different states. To be clear, human resources should spell out specifically what the usual terms on an employment contract mean; have the employee read and sign an agreement at the beginning of employment. Everyday language can be used to reduce the risk of misunderstanding. These type of interpretations can be discussed in an employee handbook or something similar that is used for training.
Lay Offs and Rehire
The issue of language is important for the types of compensation and assistance available to employees facing termination. Being “laid off” is a term that does not imply any failure or wrongdoing on the part of the employee. Rather, it describes a business event, where the work or cash flow has changed from that anticipated. Many types of employee lay-offs can have a contingency clause in which former employees have first right of refusal when a new round of hiring begins. If this isn’t the plan for the business, it should be specified that laid-off employees are or are not eligible for rehire. Employees ineligible for rehire may have cause to ask for explanations if consideration isn’t given to all equally.
Behavioral Causes of Termination
Any time a list of behaviors is used for a consequence, there is a concern the list will be incomplete or not specific enough to avoid a challenge. Being too vague, however, can also be problematic, as behavior can be interpreted. Many businesses use terms such as ethical; but the prudent path is to describe behaviors in such a way that they cannot be challenged if the employee has agreed to the employment terms.
Any behavior that can lead to a business being charged with a civil rights violation, or charged as a workplace that puts employees in danger, should be cause for immediate termination. Examples would be violence or threats of violence in the workplace; federal hate crimes; arrest or conviction on a criminal charge; or sexual misconduct. Less clear-cut behaviors need to be specified. This may include public behavior, social media behavior, and specific acts which damage the reputation of the business.
These causes for termination resulting from behavior outside the workplace can be challenged; especially if the policy is not enforced equitably, or if the policy is too vague. A recent example involves school teachers who are fired when inappropriate photos of them were found in a public venue. Teachers have the right to challenge termination, especially if only females with online photos are fired, and males aren’t; or in a situation in which the photos are stolen and posted without permission.
Challenges from Protected Groups
Employees in protected groups, those who are on family medical leave or who are pregnant or on maternity leave need careful documentation of work performance and behavior before termination. Of special concern is termination that can be considered retaliation for whistleblowing or charges brought of discrimination or sexual harassment. If termination is being considered for an employee who has either reported unsafe or illegal activity at the business to authorities or who has brought a civil rights complaint to leadership or civil authorities, ensure that work performance and behavior is carefully documented and that these consequences have been in place equitably across the board. In many cases, if an employee can prove that standards are not enforced the same for everyone, even if those standards are part of legally binding contracts, there will be cause for a discrimination claim.
We would be happy to consult with you on document and contract preparation, and policies and procedures for behavioral standards before termination in the workplace.