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I want to terminate an employee. How do I keep them from suing me

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Anne G. Brown represents both employers and employees with employment law issues.

Q: I want to terminate an employee. How do I keep them from suing me?

A: The short answer is: you can't. One person can sue another person or a business, even if there is no merit to their claim. They shouldn't, but they can. What you can do, however, is lessen the chance of being sued by being educated on employment laws and staying within the lines. Obviously, never terminate an employee simply because they are a member of a protected class. (I hate that that even has to be said.)

In addition, a common theme I see in employment lawsuits, regardless whether my client is the employer or the employee, is the degree of surprise involved. Employers tend think that their company is "one big, happy family." They cannot believe the assistant who has been with them for ten years would sue them. Alternatively, I often hear from employees who are surprised by their discharge because "no one ever told me I wasn't measuring up." Therefore, a good way to avoid being sued or to lessen the impact of a lawsuit is to mitigate surprise.

To do so, conduct regular employee performance reviews. An employee who sees their discharge coming, is less likely to be surprised when it happens and is less likely to sue. Also, keep well-papered personnel files that include copies of performance reviews, disciplinary meetings, warnings, etc. Document, document, document. Rule of thumb: if it wasn't written down, it never happened. A paper trail of poor performance may not prevent litigation, but it will arm you with a strong defense that will increase the chance of the MDHR or the EEOC finding "no probable cause" of discrimination, and/or it may allow a district court action to come to a quicker conclusion.

(Disclaimer. This article is for informational purposes only and does not constitute legal advice. Neither does it create a lawyer-client relationship. You should not rely upon this information without seeking your own professional counsel.)

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