Situations Where You Have to Be Extra Careful When Firing Employees

Sometimes, even when you think you've done your due diligence during the hiring process, an employee just doesn't work out. When an employee doesn´t meet your expectations — or worse, is acting illegally -- you must face the unpleasant and emotionally charged task of firing. To avoid potentially opening yourself up to litigation, be especially careful about firing someone in one of these situations:

• The employee has prior complaints. The employee has made prior complaints about harassment or your company doing something illegal or wrong, or about safety or health conditions in the workplace. If the employee you want to fire has a history of complaints, termination can be seen as wrongful retaliation.
• The employee is 40 years old or older. The Age Discrimination in Employment Act protects many workers who are age 40 or over from discrimination. You can´t just fire someone because you want to fill your office with younger and cheaper employees.
• The decision to fire the employ is motivated by some other form of discrimination prohibited by law. Various federal and state statutes prohibit discrimination based on race, color, gender, religion, national origin, or disability. In addition, sixteen states and the District of Columbia (as well as many local governments) prohibit discrimination based on sexual orientation. Make sure the termination isn't a willful or deliberate attempt to discriminate against a minority. Remember, however, that anti-discrimination statutes are written not only to protect members of minorities, but to prohibit discrimination motivated by any of the criteria above: A male employee can also file a claim of gender discrimination, for example, if it appears that his gender was the motivation behind his being fired.
• The employee has an employment contract. Make sure to review any employment contract you may have with a particular employee. Also, before you fire anyone, review any written policies your company might have about terminating employees. Information on firing employees should appear in your company´s employee handbook. Before you fire someone, you want to know the consequences: if you have to give the employee a 30-day warning to improve, or if you have to pay severance pay, for example. Don´t be caught not knowing your company´s employment rules.
• You´ve made inconsistent promises or statements to the employee. Before you fire someone, review whether the employee was given any promises about terms of employment or how any termination would be handled. Did you make any commitments about "job security?" Employees often claim that they were promised job security or a long tenure in wrongful termination lawsuits.
• You´re laying off more than one person at once. If you find that you need to fire a number of employees at once, you have to carefully avoid any discriminatory pattern in the layoffs. Don´t lay off all of your 35-year-old white men at once, for example.

No matter what your reason for firing someone, remember to treat all employees even-handedly. If you don´t enforce policies about tardiness or absenteeism uniformly, for example, you may have legal problems defending firing someone for this reason when you didn´t invoke the policy before. A jury or court could view this as a form of illegal discrimination.

In especially sensitive firing situations, consult with an experienced employment attorney to help you avoid potential pitfalls.