Reducing Legal Risk When Firing An Employee: How To Avoid Wrongful Termination Lawsuits
Legal Guidelines To Protect Your Business When Terminating An Employee
Like most other states, Arizona is an at-will employment state, which means that employers have the legal right to terminate an employee at any time, with a handful of exceptions. Unfortunately for employers, sometimes even a legal termination can look illegal, leaving your business vulnerable to the time, expense, and reputation risk of defending a wrongful termination lawsuit.
Employers can minimize their risk of wrongful termination lawsuits by carefully considering these tips from their Scottsdale business attorney . These considerations are intended for at-will employees; other considerations will apply if your employee is a member of a labor union or has an employment contract.
Follow All Of Your Established Policies
Be sure that you have consistently and accurately followed all personnel policies before you terminate an employee. This means that you have not skipped any steps or procedures in your handbook and that these policies are uniformly applied to all employees at your company.
An employee handbook is a crucial part of any business and should be discussed at length with your Avondale business attorney. Include policies about unexcused absences, procedures for calling in sick, specific policies regarding when poor attendance is grounds for termination, and a comprehensive disciplinary policy. Typically, this will begin with a verbal warning and end in termination. In many cases, your handbook will make clear that employers have the right to skip steps if the offense is severe, but if it does not, it’s crucial to make sure you’ve carefully followed all of the steps, so you are not left at risk of a lawsuit.
Consider whether you’ve made exceptions for other policies in the past, such as lighter discipline for the same offense. It is always a good idea for employers to have an attorney review employment handbooks, to ensure that they do not inadvertently confer rights on employees that the employees would not otherwise have.
Thoroughly Document All Performance Issues
One of the most important ways to minimize your legal risk is by ensuring that the grounds for termination have been carefully and thoroughly documented in the employee’s file. If specific incidents such as safety violations, insubordination, or unexcused absences occurred, each person who was involved should be interviewed and asked to write statements. Any write-ups should be signed and acknowledged by the employee and then filed.
Evidence of performance problems should also be saved in the file. This may include screenshots of schedules, customer complaints, timecard records, phone records, production records when applicable, video surveillance, and any photos that may have been taken. These may be used in your defense if your ex-employee decides to file a lawsuit.
Apply Policy Equally To Members Of Protected Classes
Federal employment law makes it illegal to terminate an employee due to their race, sex, religion, national origin, ethnicity, age, or pregnancy status. Employees who are surprised or confused by their termination are more likely to file wrongful termination lawsuits claiming discrimination. Especially if your employee is a minority, female, pregnant, or over 40, it’s imperative to make sure your policies are being applied equally. Consult with your Glendale business attorney before termination if you have concerns.
Follow FMLA & Protected Leave Requirements
Employees on leave under FMLA cannot be terminated and have the right to be reinstated to their positions when they return – with only a few exceptions. If one of your employees has recently returned from FMLA or indicated that they would be taking FMLA, be very cautious about termination because it can easily be found retaliatory by a court. Documentation and following personnel policies are crucial.
Follow ADA Guidelines For Disabled Employees
The ADA makes it illegal to terminate employees due to a disability. If the employee in question is disabled, it’s extremely important to carefully follow policies and have plenty of documentation. When a disabled employee asks for “reasonable accommodation” per ADA guidelines, you’ll need to engage in careful conversation with the employee and do your best to make appropriate accommodations in order to avoid expensive discrimination lawsuits.
Avoid Termination After a Complaint
Be extremely cautious about terminating an employee who has recently filed a formal complaint or claimed that a manager or employer has done something illegal. This can look like retaliation and coverup for not adhering to safety regulations, sexual harassment, or other non-compliance. Employee complaints of illegal activity or violations should be seriously investigated and documented and discussed with your Phoenix business attorney.
Verify Employee Compensation Records
Before firing any employee, check your records to verify that the employee has been adequately compensated. This includes adherence to minimum wage and overtime laws, break time procedures, and issuance of final paycheck. Your Tempe business attorney can provide legal guidance if you are unclear on Arizona compensation and employment laws. Employees who are unpaid may file lawsuits to recoup unpaid wages, which they are entitled to receive regardless of the reason for their termination.
Consult an Experienced Attorney Who Understands Arizona’s Employment Laws
If you are considering terminating an employee at your business, consult with the attorneys at Denton Peterson Dunn before taking any action. As one of the top-rated law firms in the state, we help businesses of all sizes understand how Arizona’s business and employment laws apply to their situations. We are ready to assess the situation and provide solid legal advice to protect your business and interests against wrongful termination lawsuits. Call us today to speak confidentially with an attorney.