Making the decision to let an employee go is rarely an easy one. Firing someone affects that person’s life and leaves a space in the workforce that an employer must often fill. As such, employers typically do not fire people on a whim.
Even if the need to terminate is obvious and immediate, it is crucial for employers to proceed carefully. Doing so can avoid any indications of misconduct or violations of an employee’s rights that could spark a legal dispute.
The short answer to the question posed in the title to this post is that you can avoid a wrongful termination claim by offering your exiting employee a severance package in exchange for a release of claims. Without a release, an employee is always free to file a charge and/or commence a lawsuit.
If you don’t plan to offer severance (or even if you do and that offer is declined), the best you can do is make sure you have set yourself up with a strong defense, should a claim be made. To do that:
- Maintain accurate and complete personnel files. Document an employee’s poor performance and attendance issues in real time. Discuss them with your employee immediately. A well-papered personnel file provides a strong defense. And an employee who is not surprised by their termination is less likely to sue.
- Follow a standard protocol. Every employee termination may be different, but it is important that you have and follow a standard protocol. This might include having an employee handbook that states your termination policy. Standardizing the process can make it easier for the employer because it serves as a guide. It can also lessen the appearance of disparate treatment when all parties are subject to the same process.
- Know the laws. It is unlawful to fire someone in Minnesota for discriminatory reasons. This means you cannot fire an employee because of his or her race, sex, religion, age, disability, marital status or for any other protected class. In addition, you cannot fire someone in retaliation for certain acts, for example, taking FMLA leave or filing a complaint. Furthermore, you must provide a truthful reason for the termination if the employee requests one in writing within fifteen working days of termination.
As an employer, you are in a difficult spot when you fire someone. Such a decision can be unpopular or unexpected; the employee you let go could be very angry or hurt and accuse you of unlawful conduct.
These tips can help employers mitigate the chance of being sued and provide a strong defense if they are. If such a claim does arise, legal counsel is crucial.