Posted on December 17th, 2018
Firing an employee is never easy, but you want to try to avoid any unnecessary legal problems by doing it the right way.
In this article, we give you some tips on how to best go about it while still staying within your legal bounds.
Wrongful termination suits are expensive for any company. When an employee believes that the company fired him/her for unlawful reasons, he/she may file a lawsuit against the employer.
This is why as a California employer you need to be careful when firing someone, even if you have a valid reason to do so.
You must be able to prove that the reason for the firing does not violate any of the protected standards should your employee decide to take you to court with that claim.
Even if you fired the employee strictly for valid reasons, like work performance, they may claim it was for a protected reason (race, age, sex, retaliation etc.)
How do you then ensure that you won’t run into legal troubles when firing an employee?
Follow some of our suggestions below before deciding to fire someone to help avoid a claim against you for unlawful terminations.
Look at the Employee’s Contract
If you have a contract or an agreement with your employee as a part of their union or your companies employee handbook be sure to go back and review this first.
These documents may detail how and why you will fire employees.
That’s why you should look through them first, if they’re available, to see if your reason for firing is valid based on the agreements the employee signed.
For example, your contract with them might state that you will only fire the employee by a vote of the board of directors. It might also state specific reasons for the firing.
If you don’t follow your own companies procedures in your agreement, the employee could have a legal basis to claim unlawful termination due to “breach of contract”.
He/she might also be a part of a union, which negotiates a contract that only permits “for cause” terminations. In this case, you must have a good reason for the firing.
If there are no contracts that specify the reasons for termination, you might be able to fire your employee “at will”.
However, you have to refer to make sure they are not being fired for any of the protected reasons.
Consult Your Company Policies
Your company handbook might have a policy about your limitations on firing employees. You have to make sure that the termination is within the bounds of the employee’s contract.
One example of a relevant company policy is at-will employment.
California is an At-will State. At-will employment policies stipulate that you may fire employees for any reason at all.
However, make sure the employee knows about this before you even hire them.
Most companies with policies create procedures where you have to give warnings or resolutions first before you fire an employee.
If it leads to termination, make sure you have documented every step of the process. This will prove that you followed the company policy.
Another example is a “just cause” policy. This states that you can fire an employee immediately if they have violated specific company policies that have been spelled out and known to everyone.
For example, the employee has violated a law or a company policy. These are just causes, and you may use these reasons to terminate the employment.
Study the State and Federal Laws About Firing an Employee
On top of the contract and company policies, there are also state laws about employment terminations. Even at-will employees get protection from these laws, so you have to review them first.
For example, you can’t fire an employee for discriminatory reasons. This can be race, political beliefs, religion, and sexual orientation. An employer may also not discriminate against victims of crimes and immigrants.
If any of these are proven to be the motivation of the firing, it becomes unlawful even in at-will employment.
California, in particular, has strong anti-discrimination laws. These also cover other discriminatory acts in the workplace beyond termination. According to the Fair Employment and Housing Act, employers also can’t create a hostile environment in the workplace that forces the employee to resign.
An employee also has a legal right to report any violations. This means the employer may not use this as a reason for firing someone. This is called “retaliation” and is a common claim against employers in California.
An employee that reports an employer’s unlawful activities and will be protected. The employer can’t with any type of punishment for the employee’s action.
The laws also state that you can’t fire for reasons such as discussing the income or taking a leave.
Even if your company policy prohibits these things, the employee still has a legal right to do so.
The laws also protect parents and school-related activities, like enrolling their child.
In summary, you should always update yourself on the latest new laws first before firing.
New laws favorable to employees are passed constantly so your reason may be unlawful, without you know it and may prompt an employee to file a lawsuit.
Do You Need Legal Reasons for Termination?
As tough as this state is for employers it surprises some that the State of California, utilizes “at-will employment” rules.
Now, this goes both ways.
Employees can quit their job at any time, and really do not need to give a reason for doing so.
This gives employees the freedom to quit even if it leaves you and your company in a bind. (They walk out in the middle of a busy shift or an important project they have yet to finish).
You as the employer also get the right to fire employees for any reason at all as longs as it’s not for a protected reason.
Again examples are, you can’t fire an employee simply because of:
- gender,
- race,
- religion,
- or sexual preferences,
- they reported law violations by your company (retaliation)
In short, you don’t need a reason to fire an employee as long as you don’t do so because of unlawful motivations.
Review the Employee’s Personnel File
If you think that your reasons to fire an employee do not violate any of the “protected” categories, review his/her file before you terminate the employment.
Make sure you have sufficient documentation to justify the reason for firing him/her.
Look at the history of the employee. See if they fall into any of the categories where they could make a claim against you.
Ask for Legal Advice
When firing an employee, it’s important that you make the right decision based on documented evidence, even for at-will employees.
If you’re still unsure whether or not you have a legal reason to fire an employee, talk to a legal professional.
Contact us now and let’s discuss your situation.
