What You Can't Fire Someone For
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by Rebecca Berlin
Under the employment-at-will doctrine, an employer can generally fire an employee for any reason or for no reason at all. However, there are some things that an employer can't fire an employee for. Employers cannot fire employees for reasons that would violate anti-discrimination laws. (For more information on employment discrimination laws read the article, "Employment Discrimination Laws You Should Be Aware Of".) An employer also cannot fire an employee for reasons that would violate public policy. For example, an employer cannot fire an employee because that employee turned the employer in for violating the law.
There are several anti-discrimination laws that prevent employers from being able to fire employees for discriminatory reasons. Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex and national origin. When it comes to firing employees, this means that you can't terminate an employee for any reason that would indicate that you are discriminating against the employee on the basis of one of these factors. One obvious example: you can't ask an employee out on a date and then fire him or her for declining your invitation. The problem is, if you fire the employee for some other reason, this conduct on your part clouds the issue.
The Age Discrimination in Employment Act prohibits employment discrimination on the basis of age. You might need to worry if you fire an older worker and replace him or her with a younger worker. You need to be able to show that there was another reason that you fired the employee or it could very well look like age discrimination.
As an employer, you may think that you would never fire someone for a discriminatory reason. The real problem is if you can't prove that you fired someone for a valid reason, it may look like you did fire the person for a discriminatory reason. This is why it is especially important for employers to keep good records and documentation of any employee problems.
Employers cannot fire employees for reasons that violate public policy. For example, employers cannot fire employees who are "whistle blowers". These are employees who turn their employers in for violating certain laws. The government wants employees to be able to report business activities that are illegal without being afraid of losing their jobs. If an employee claims that your business is violating some law, you need to investigate the claim without taking any action against the employee. Another example: an employer can't fire an employee because that employee filed a workers compensation claim. Worker's compensation laws and worker's compensation insurance exist to protect workers who are injured on the job. This public policy would be thwarted if employees were afraid to file claims because they might lose their jobs.
As an employer, you are going to run into trouble when you want to fire an employee for a valid reason, but, due to a lack of proper documentation, it looks like you are firing an employee for an illegal reason. To prevent this, be sure to engage in consistent procedures for documenting employee problems.
Dealing with Problem Employees
Get productive again and stop wasting time dealing with a problem employee. This book provides:
- Progressive discipline instructions for transparent termination
- A guide on what "shouldn't be said" at termination time
- A variety of forms to manage employees