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Saturday, March 17, 2012

Wrongful Termination Laws: Illegal Reasons

You should always be mindful of wrongful termination laws. Firing someone for the wrong reason could land you in a whole lot of legal hot water.
A majority of all employees in the United States are "at will" employees. What this means is that you can fire these employees at any time and for any reason, so long as the reason is not discriminatory, retaliatory or otherwise illegal.
Both state and federal laws are in place that prohibit employers from firing employees for certain reasons. These wrongful termination laws will apply whether the employee is at will or the employee is working under an employment contract.

Wrongful Termination Laws: Discrimination

Under federal law, it is illegal for employers to fire an employee because of the employee's race, gender, national origin, disability, religion or age (so long as the employee is at least 40 years old). In addition to these "protected classes," federal law also makes it illegal for employers to fire an employee because she is pregnant or has a medical condition that is related to her pregnancy or childbirth.
A majority of states also have wrongful termination laws that prevent employers from terminating employees for all of the reasons listed under the federal laws. Some states also take their wrongful termination laws further and add more "protected classes."
For example, some states also include sexual orientation in this list of protected classes. An employer in such a state would be prohibited from terminating an employee just because they were gay or lesbian. In addition, some states write their wrongful termination laws in such a way that they cover a wider ranger of employers than the federal laws do.

Wrongful Termination Laws: Retaliation

Generally speaking, it is illegal for an employer to terminate an employee for asserting his or her rights under federal or state anti-discrimination laws. Employees have been known to build successful retaliation claims even when the underlying discrimination claim doesn't work out in their favor. As an example, if you fired an employee for complaining that she was not receiving equal pay to the men in similar positions, you may end up losing a retaliation lawsuit even if you end up showing that your pay schedules were not discriminatory based on gender.

Wrongful Termination Laws: Refusing to Take a Lie Detector Test

Under the federal Employee Polygraph Protection Act, employers are not allowed to fire employees on the basis that they refused to take a lie detector test. In addition to this federal law, many states also have laws that prohibit employers from firing employees because they refused a polygraph test.

Wrongful Termination Laws: Aliens

Under the federal Immigration Reform and Control Act, employers are prohibited from firing employees on the basis of their alien status. So long as the employee is legally eligible for employment within the United States, an employer cannot fire that employee solely on the basis of their alien status.

Wrongful Termination Laws: Complaints about OSHA Violations

Under the federal Occupation Safety and Health Act (OSHA), employers are prohibited from terminating employees because they make complaints about the employer's OSHA violations. These complaints are often made about an employer that does not meet state or federal health and safety standards.

Wrongful Termination Laws: Violations of Public Policy

There are a number of states that have laws that prohibit employers from terminating employees when the terminations are in violation of public policy. In other words, these laws stop employers from firing employees for reasons that the public would find morally reprehensible or ethically wrong. These laws are often difficult for employers to follow, as morals and ethics are subjective and will vary from state to state. It is not uncommon for some state laws to differ form the laws of other states.
However, despite this subjectivity, there are some common themes that are found in many states' laws. Many states agree that the following would be in violation of public policy:
  • Terminating an employee because he or she refused to commit an illegal act that was ordered of her by a superior (such as refusing to destroy documents that must be maintained according to state or federal law).
  • Terminating an employee because the employee complained about his or her employer's illegal activities (such as firing an employee that made a complaint to the federal government about his employer's illegal dumping of toxic materials). These laws are often referred to as "whistleblower statutes."
  • Terminating an employee because the employee exercised his or her legal right (such as taking a permissible family leave).

Employer Fears about Wrongful Termination Laws

Even the most careful employer that follows all of the guidelines that are set out above can feel uncomfortable about wrongful termination laws. Many employers fear that a former employee will come back with a lawyer in tow and file a wrongful termination lawsuit. One way that you can alleviate these fears is to have all outgoing employees sign a "release" where the employee agrees not to sue the employer in exchange for some benefit (such a severance package).

How to Fire Employees Legally

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The corner office with a view, the premier parking spot, the bigger paycheck ... being a boss is the life. Except when it comes to firing employees. The inevitably uncomfortable conversation is an often dreaded aspect of being in a position of power, and one that almost every employer is confronted with at one time or another.
More than coming up with the right words to say, there are some major considerations every employer should also familiarize themselves with to ensure that they are firing or laying off employees legally. Here are some tips for keeping things legal....
  • Make sure that you have a valid reason for firing (or laying off) the employee.Some invalid reasons include: retaliation, complaining about OSHA violations, discrimination, alien status, and any violation of public policy.
  • Keep it confidential: a company-wide Eblast is probably not the best approach to alerting others in the company of the employees' situation. Rather, only telling those individuals that need to know is the best approach to ensuring that the employee does not hear about his firing before it happens.
  • Plan ahead: sounds simple enough, but by considering all the legal requirements you need to comport with before firing the employee, you will also alleviate a lot of legal concerns that may occur post-firing. This may include: severance offers, monies due, terms in the employment contract, company policies, etc.
  • Keep a paper trail: keeping copies of performance reviews, relevant correspondence, and other personnel documents will help protect you should there be a lawsuit later on.
  • The employee should not be completely surprised by the firing or lay-off.Whether it is keeping employees abreast of the struggling finances of the company, or alerting the worker to poor job performance, there should be a dialogue before the employment termination.
Although a majority of the American workforce is based on "at will" employment, essentially meaning that the employer-employee relationship can be severed at any time, there are still some viable concerns over a wrongful termination suit in any situation. Making sure you have a valid reason for firing an employee, and planning the conversation ahead of time will help with the actual firing and protect your company from many of the legal issues that follow.
In the end, honesty is almost always the best policy, and usually appreciated as the employee can take your reasons with them as they job hunt.
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