All too often, small business managers think, “my business is in an at-will state, which means we can terminate someone’s employment for any reason or for no reason at all, right?”
There are a number of exceptions to the employment-at-will doctrine, including the following:
As an employer, you’ll want to consider all such issues before moving forward with the termination of an employee, even in a state that presumes employment to be on an at-will basis. Discrimination, public policy, retaliation and rights issues generally pose the most frequent challenges.
A key question for any manager who is contemplating terminating an employee for a performance issue is, “do you have any documentation of this performance issue, such as counseling forms or performance improvement plans, showing that you made the employee aware of the performance issue at hand and then gave the employee the tools, resources and time to improve?”
Another key question is, “would termination of this employee be consistent with the company’s handling of similar situations in the past?”
If the answer to either of those questions is “no,” then termination of the employee would be tantamount to inviting discrimination, public policy, retaliation, rights and other claims. Why? Because the employee would be able to argue that the employer’s official reason for the termination is not supported by documentation and/or not consistent with the way in which similar situations have been handled in the past. This, the employee could argue, means that the employer’s official reason must be a pretext—and that the “real” reason must be discriminatory, for example.
Even in at-will states, terminations are never just cut and dried. For more guidance, contact TriNet for help.
This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.