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Avoiding Claims of Illegal Termination of At-Will Employees

Most employment is at-will, meaning the employer generally has the right to discharge an employee at any time for any reason or for no reason at all. However, a termination or other job action cannot violate protections against unlawful discrimination or retaliation.

Federal laws prohibit employment actions based on an individual’s sex, religion, age, race, national origin, disability, pregnancy status or veteran status. If an employee claims that you fired them because they are part of one of these protected classes, you could face an employment discrimination investigation by the U.S. Equal Employment Opportunity Commission (EEOC) along with a wrongful termination lawsuit requesting monetary damages and other relief.

Before you decide to sever ties with an employee, it is smart to prepare yourself for the possibility that you could face these legal ramifications. Here are some proactive steps that can be taken:

  • Establish a process for discipline and termination —Following the same disciplinary and termination procedures for all employees can demonstrate that no employee was treated differently because of the protected class to which they belong.
  • Compile evidence — Though at-will employment allows you to terminate an employee for no reason at all, collecting and documenting evidence in support of your decision can be crucial to rebutting claims that the firing was in violation of law. Having these records on hand is much more effective than trying to offer justification for the firing after an investigation or lawsuit has been commenced.
  • Do not retaliate — It is illegal to retaliate against an employee who refuses to participate in unlawful behavior, complains about sexual harassment, files an EEOC complaint, complies with an EEOC investigation or takes other actions protected by law. Government workers and employees of government contractors are also shielded from retaliation under the federal Whistleblower Protection Act.
  • Consider a severance agreement — The best way to accomplish a trouble-free termination is to offer the employee financial compensation and other benefits and favorable terms in return for their agreement to release the company from legal liability. The employee should be given a reasonable period of time to have an attorney review the agreement before they sign.

Wrongful discharge claims are often proved by circumstantial evidence, so taking these steps can help you overcome the inference that the reason given for firing the employee was a pretext for unlawful discrimination or retaliation.

The experienced employment law attorneys at Hemmer DeFrank Wessels, PLLC stand prepared to answer your questions about legal and illegal employment termination. We also help companies create employee handbooks and disciplinary processes, and we draft employment contracts and separation agreements. To schedule a free initial consultation, call 859-344-1188 or contact us online. We represent businesses in Kentucky, and Ohio.

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    Phone: 859-344-1188
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