Breaking Up Is Hard To Do -- Part I of II (the Problem)

Perhaps it’s a sign of the times that our industry is often asking questions about terminating an employee position. From the employer/manager perspective, the conversation goes something like this: (1) Isn’t [insert the usual inadequate or disruptive employee performance] outrageous? (2) No one can tell me how to run my business. I make the decisions around here. Right? And (3) Can I terminate the employee without liabilty? My answers: (1) Yes. (2) No, and (3) Maybe, if you follow some of the guidelines below. I bet you can write the script of the conversation with an aggrieved employee.

Most states follow the “at-will” doctrine which holds that an employee can be fired for any reason or no reason at all, but not for a discriminatory reason. An at-will relationship exists absent an express contract (for example an employment agreement, sloppy employee manual, or collective bargaining agreement) or implied contract (for example the employee is informed that he or she would only be fired under certain circumstances or could count on a position for a specified period of time).

Discrimination is defined by Federal and state laws as a firing based on race, religion, gender, national origin, disability, age, pregnancy or medical condition (some states add sexual orientation or marital status). Therefore not all “discrimination” is prohibited. In most circumstances an employee may be fired because he or she pushes purple polka doted sofas, roots for the wrong team — Red Sox or Yankees — to clinch the division title, or simply because he or she doesn’t get along with the employer. It may not be fair, moral or smart business practice but the employer can fire the employee if the employer wants to replace him or her with a relative or someone the employer likes better. As long as the discharge is not due to a prohibited discriminatory motive under an applicable statute, the termination would be proper (for example if the Red Sox fan was a member of a protected class there may be a risk of a claim depending on the circumstances). A retaliation claim, however, is a possibility when an employee is fired after he or she has complained about an alleged discriminatory incident. Also employees are protected by public policy exceptions to the “at will” doctrine such as being fired as a whistle blower, for refusing to perform an alleged illegal act, or in violation of workers’ compensation statutes protecting injured employees.

My next post will suggest solutions and how to avoid the many pitfalls that can lead to a wrongful termination claim. If you, as an employer or employee, have any war stories you would like to share, please post a note below or email me. In the meantime my colleagues have asked me to remind you that employment matters are governed by Federal as well as state laws that vary across the nation. State statutes need to be applied to the specific facts of each incident so consult your attorney (hey, we have to work too).