Protect Your Practice

Terminating an employee is never a comfortable or easy task. When done, it must be free and clear of legal complications. Even firing an incompetent employee can be a risky endeavor. Do it for the wrong reason or in the wrong way and you may have to pay substantial damages. Let's review some of the steps you can take to mitigate your risk when parting ways with an employee.

The Pros & Cons of At-Will Employment

At-will employment is a legal presumption in all U.S. states other than Montana, whereby either an employer or an employee may, with no adverse legal consequences, terminate the employment relationship for any legal or no reason. Most employers take pains to point out, in their written policies, applications, handbooks, job evaluations or other employment-related documents that their employees work at-will.

There are several limitations to at-will employment. If your employment agreement or written policy includes a list of reasons for which employees can be fired, employees may be able to seek legal protection if the reason for their termination does not fall within that list. In addition, if during or after the hiring process, you made any statements that indicated that an employee can only be fired for good cause, you may be liable for breach, as this could be considered an implied or oral contract.

For example, if you said, "You'll always have a home here as long as you do your job well" or "We only terminate employees who do not meet our performance standards, even after we have coached and trained them," your employee may claim they were not employed at-will.

How to Thwart Wrongful Discharge

Even at-will employees cannot be fired for reasons that are illegal under state and federal law. For example, in most states an employee cannot be fired because of their race, religion or gender. At-will employees are also protected from termination for filing a complaint about illegal activity, discrimination, harassment, or about health or safety violations in the workplace. In addition, employees may not be terminated for exercising their legal rights, including taking leave to serve in the military or taking time off work to serve on a jury or vote.

To thwart wrongful discharge, employers must be prepared to show that termination was for a specific reason. Examples of termination for cause include: performing poorly in the job, abusing sick leave, being habitually tardy, endangering health and safety, and engaging in criminal behavior.

Lawsuit "Red Flags"

While following the letter of employment law is important in all cases, there are certain situations that call for extra vigilance. If the employee you are terminating is over the age of 40, you may be at risk for an age discrimination lawsuit. Terminating an employee who is disabled in any way without adhering to the Americans with Disabilities Act may also place you at risk. Firing an employee who has been injured on the job or who has filed a worker's compensation claim requires extra diligence.

Sensitivity toward gender and race is essential when terminating an employee, especially when the employee is a minority or female. Other lawsuit red flags include an employee who has been involved in a sexual harassment dispute. Employees who have been involved as a whistleblower also may place you at risk for litigation.

You can decrease your exposure to a wrongful termination lawsuit by acting consistently toward all of your employees. Take care to take similar action against all employees who have acted in the same way. Have a documented, progressive discipline process and follow it completely. This may include a progression from verbal correction, to written documentation in the employee's file, to involvement of a third party. Your documentation should include if an employee has been repeatedly counseled and assisted regarding performance.

Termination Tips

• First and foremost, document everything. Having clear documentation of all of the steps leading up to the termination is essential.
• When firing an employee, it is good policy not to do it alone. Have a third party there to witness the process.
• Avoid making statements to the employee such as, "I'm sorry about this," and "I hate to have to do this." These statements may be used against you in a wrongful termination lawsuit.
• It's good practice to have documented exit procedures for terminating an employee and to follow them.
• Have the employee's final paycheck ready to deliver.
• Make a list of any company property that the employee may be in possession of that will need to be returned.
• Back up all important computer files before firing the employee.
• Terminate the employee on

Monday instead of Friday and keep the meeting short.

Take the Right Steps to Protect Your Practice

You can decrease the likelihood of an employment lawsuit and from being the victim of employee crime [see part 2 of this article, January 2017 issue] by setting good company policies and procedures, being familiar with them and following them.

Don't get sloppy with your employee documentation. Give your employees regular, honest performance appraisals. Take all employee complaints seriously. Be sure to work with employees to correct poor performance prior to firing them. And foster a positive attitude and a culture of acknowledgment and accountability among all of your practice team members.

Editor's Note: Part 2 of this article appears in the January 2017 issue.

Dr. Mark Sanna, a 1987 graduate of New York Chiropractic College, is a member of the ACA Governor's Advisory Board and a member of the President's Circle of NYCC and Parker College of Chiropractic. He is the president and CEO of Breakthrough Coaching (www.mybreakthrough.com).