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How to Fire an Employee

© 2000 Door & Access Systems
Publish Date: Winter 2000
Author: Tom Wadsworth
Pages 40-41

Legal Tips
How to Fire an Employee

Phillip M. Schreiber
Special to Door & Access Systems

General speaking, you can fire an employee at any time, for any reason. That’s because almost all states have adopted the doctrine of "employment at-will." But before you start firing away, you should know that there are some important exceptions to this doctrine.

For example, anti-discrimination statutes prohibit terminating an employee on the basis of his or her race, color, sex, religion, national origin, age, or disability. Most states prohibit terminating an employee in retaliation for the employee’s assertion of his or her workers’ compensation rights. Also, the at-will doctrine may be overridden by an express or implied contract between the employer and employee. Most often, a former employee suing an employer is relying on one of these exceptions.

In theory, the employee must prove that you, the employer, were motivated by an unlawful reason when you chose to terminate the employee. The reality is different. To succeed at trial, you must convince the jury that you had no unlawful motivation underlying your termination decision.

This article sets forth some of the anti-employer preconceptions and misconceptions held by a typical juror. In part two, we will offer guidance on how you can take steps ahead of time to overcome these misconceptions. None of the suggestions offered in this article are mandated by law. Nevertheless, to succeed in front of a jury, you would be wise to abide by as many of them as possible.

The Stacked Deck

The cards are stacked against you in employment cases that are tried before a jury. In order to have any chance of winning at trial, you must be prepared to overcome the strong preconceptions and misconceptions that the typical juror has about employers and the way they operate. Notwithstanding the employment at-will doctrine and the burden of proof being on the employee, at the start of the trial, before any evidence is presented, many jurors already believe:

  • Managers in companies sometimes fire employees for personal rather than business reasons;
  • Discrimination in the workplace has become more subtle, and employers are becoming more sophisticated and devious in the ways they go about discriminating against employees;
  • Retaliation for reporting unlawful conduct (even internally) is common in the workplace;
  • When faced with a sexual harassment complaint, the human resources department typically will try to cover it up in order to protect the company, and managers who have sexually harassed a subordinate get nothing more than a slap on the wrist by the company;
  • The best evidence of an employee’s work performance is the employee’s performance evaluations, and alleged deficiencies not mentioned in a performance evaluation do not really exist, but are an afterthought by the employer to defend its unlawful conduct;
  • An employer must try to fix an employee’s performance problems before firing the employee, must properly document an employee’s performance problems, and must give an employee a fair warning before firing him or her;
  • Memos to the employee’s file, which are not given to the employee, are not proof that the employer actually counseled the employee about the performance problems noted in the memos; and
  • Large companies will lie to win a lawsuit.

You must be able to show by your actions that you are not like the typical employer. When discharging an employee, you should think about how your actions would be perceived by a jury. Jury research indicates that, in order to succeed before a jury, you should follow these four practices:

  • Give employees "due process."
  • Treat employees with respect, but do not sugarcoat or hide the truth.
  • Maintain "good" documentation to support your employment decisions.
  • Maintain and implement policies designed to prevent and/or promptly correct any unlawful behavior by supervisors or co-workers in workplace.

These practices will be discussed more fully in Part II of this article, in the spring edition of Door & Access Systems magazine.

Phillip M. Schreiber (schreiber@mbc.com, 312-715-5784) is an associate in the labor and employee relations department at Chicago-based McBride Baker & Coles. The department provides counseling and litigation services to employers in all areas of labor and employment law.

This article is provided solely for informational purposes and does not constitute legal advice. If you need specific legal advice, consult legal counsel.