Wrongful Discharge

How to protect yourself from a wrongful termination lawsuit
By Kristen Bailey In general, wrongful discharge refers to the unfair firing or discharge of an employee. In the legal sense, the termination must be illegal or it is not an unlawful termination. This allows for a large amount of gray area, especially considering that most states view employment as "at-will" and that job status is  voluntary and of an indefinite time span for both employees and employers.

Just as at-will employment gives employees the right to quit a job at any time for almost any reason, employers also have rights to terminate employment. Contracts and agreements signed between parties change the at-will employment status somewhat, making some employers vulnerable to a wrongful termination case.

If you are thinking about firing an employee and are concerned about a possible unlawful discharge, take the following steps first:

1. Consult an employment lawyer or wrongful termination lawyer for advice. A wrongful termination attorney can help answer your questions that are specific to the individual circumstances.

2. Document each disciplinary conversation and action against the employee in as much detail as possible. Have the employee sign and date the write-up of each infraction, and keep careful records. Provide your employee with a copy of each signed and dated statement that you place in his/her file.

3. Educate yourself on wrongful discharge laws and at-will employment laws in your state.

4. If your company has a human resources department and/or legal department, discuss the situation with them. They will be an excellent source on current wrongful discharge laws, and can review your documentation to see if you may be in violation of any wrongful discharge law.

Educate yourself on wrongful discharge

Many available websites can help you learn more about how to keep yourself from being vulnerable to a wrongful termination case.
Try:  The U.S. Department of Labor offers a wealth of information on termination and discrimination. Their explanation of wrongful discharge from job status can help ensure that you have your bases covered while making staffing decisions. Fair Measures, Inc. offers a checklist for purchase, written by a nationally recognized expert on employment law.

Avoid retaliatory discharge

Retaliatory termination refers to the firing of an employee in reaction to "whistle blowing" or the filing of a worker's compensation claim. Examine your motives for wanting to fire an employee and be certain that your desire to end his/her employment is not a scheme for retaliation.
Try:  The ChicagoLegalNet.com website offers FAQs on retaliatory termination. US Legal offers a comprehensive look at the issue of retaliatory discharge.

Find an attorney who is knowledgeable about wrongful discharge

An expert in employment law is the best source for your questions on wrongful discharge. Early communication with a lawyer knowledgeable on wrongful discharge from employment is your best bet for heading off a lawsuit.
Try:  Legal Match allows you to search for a lawyer by specialty and geographical area, and has a brief questionnaire to help you find the attorney best suited to your needs. Find Law offers a directory to help you to find a lawyer. Nolo has an excellent article on how to go about the search for the attorney that matches your legal needs.

• Be certain any concerns you have about an employee are solely relevant to job performance and behaviors that specifically violate written company policies. Any issues that relate to the employee's race, age, gender, religion, national heritage, or physical disability are illegal and will have you vulnerable to an unlawful discharge lawsuit.
• Avoid having conversations with your employees when you are angry with them, even if you are aware of blatant transgressions such as stealing or fraud. You may act hastily and find yourself facing a wrongful employment termination lawsuit if you fire them during a heated exchange. Instead, document what you know of the situation and schedule a face-to-face meeting with your employee for no sooner than the next day.
• If you have concerns that a formal talk with an employee may result in an emotional conversation, ask a colleague or representative from human resources to be present during your disciplinary actions. However, other than one other professional, your disciplinary conversations with your employees should always take place in private.