When Can I Fire My Employee?

By Andrew Randol - August 3, 2018 - Employment & Labor

At anytime I want, they’re my employee, right? Not so fast. Terminating an employee for a retaliatory or discriminatory reason can land your company in deep water with the EEOC or result in a lawsuit. Thus, termination should always involve a multi-step risk mitigation process.

The first step in this process is to determine whether you’re dealing with an at-will employment relationship. If your employee has signed a written employment contract, then you’re probably not dealing with an at-will employee. Terminating an employee who has signed an employment contract must be done in accordance with the written language contained therein. Often, there is a for-cause standard for terminating employees subject to an employment agreement.

However, the vast majority of employees are at-will. Although the law states that at-will employees can be terminated at any time, and for any reason, the at-will employment doctrine has been significantly eroded by anti-discriminatory and anti-retaliation laws. Most employers understand their obligation to not discriminate against employees based upon their race, ethnicity, gender, age, or religion, however, many employers unintentionally subject themselves to liability by retaliating against false claims of discrimination either by disciplining or firing the complaining employee.

Although most employers feel slighted by false accusations of discrimination, prudent employers recognize that they are potentially being set up. Suppose you receive an e-mail from an employee claiming that you passed him up for promotion because of his religion. Suppose you also weren’t aware of this employee’s religion in the first place, thereby invalidating the claim entirely. In anger, you confront the employee, get into a heated exchange, which ends with you telling the employee to pack his things and take a hike. Although you haven’t discriminated against this employee, you have retaliated against him for making such a claim. As a result, your company will be on the losing side of a wrongful termination suit. Such suits routinely cost employers well over $100,000 (often much more) in legal fees and damages to the terminated employee.

However, just because an employee has made a complaint of discrimination does not mean that they are immune from discipline or termination. So long as the employer can prove that the termination was for a valid, non-discriminatory or non-retaliatory reason, then the employer is in the clear.

All employers must be prepared to explain why an employee was terminated in order to avoid liability. The employer should be able to point to a written policy that the employee violated in order to prove that the termination was for a legitimate non-discriminatory reason.

Our employment lawyers can assist in shielding your company from liability by ensuring that personnel policies and regulations are in place. Our Columbus employment attorneys are happy to walk our clients through difficult terminations in order to minimize the potential for a lawsuit.