I’ve written more than once about the private practitioner’s least favorite task.Now, new federal worker protection laws are making terminations even more difficult, even when they’re justified; however, that’s still no excuse for keeping an employee that should be replaced.
Once you make the decision to replace an employee, be sure that you have legitimate grounds and assemble as much documentation as you can. Record all terminable transgressions in the employee’s permanent record and document all verbal and written warnings. This is essential; you must be prepared to prove that your reasons for termination were legal.
Former employees will sometimes charge that any of a number of their civil rights were violated. For example, federal law prohibits you from firing anyone because of race, gender, national origin, disability, religion, or age – if the employee is over 40. You cannot fire a woman because she is pregnant or recently gave birth. Other illegal reasons include assertion of antidiscrimination rights, refusing to take a lie detector test, and reporting Occupational Safety and Health Administration violations.
You also can’t terminate someone for refusing to commit an illegal act – such as filing false insurance claims – or for exercising a legal right – such as voting or participating in a political demonstration.
While you cannot fire an alcohol abuser unless he or she is caught drinking at work, many forms of illegal drug use are legitimate causes for termination. Other laws may apply, depending on where you live. When in doubt, contact your attorney, state labor department, or fair employment office.
If a fired employee alleges that he or she was fired for any of these illegal reasons and you do not have convincing documentation to counter the charge, you may find yourself defending your actions in court. If you anticipate such problems, you can ask the employee to sign a waiver of future litigation in exchange for a concession from you – such as extra severance pay or a promise not to contest an unemployment application. Also, consider adding employment practices liability insurance – which I covered in detail a few months ago – to your umbrella policy, since lawsuits are always a possibility, despite all efforts to prevent them.