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Aug

15

The Myth of At-Will Employment

If you are an employer in the United States, you probably think you are operating in an at-will employment environment. Essentially, this means that you can fire any employee for any reason, or even no reason at all, right?

Wrong.

Simply terminating an employee without giving them a reason, or for a reason that you can’t back up with solid documentation, is frequently why employers today are sued by former employees. We often hear, “but the law SAYS I can terminate her for any reason,” or even better, “but she was in her first ninety days, so I can let her go just because I want to!”

From a legal sense, yes, this is true. If you ask a lawyer, they will also advise you that the law does in fact say that you can terminate someone for any reason. But that doesn’t prevent an unhappy former employee from taking legal action. If the employee you are looking to fire is African-American, “other-American,” a woman, a man, pregnant or recently pregnant, on medical leave, returning from leave, suffering from a medical condition, related to someone who has a medical condition, someone you think MAY have a medical condition, religious, over the age of forty, LGBTQ, injured, previously injured, in the military, is a veteran, is a whistleblower OR even just likes to complain a lot, they are protected by law from termination.

Does this sound like any of your employees? We will assume the answer is yes. This means that no employee should ever be terminated without being given a reason, or for a reason other than a long-term reduction of workforce or for-cause. Terminating someone without justification, or for an “illegal” reason will almost certainly lead to a wrongful termination lawsuit that your practice will likely lose.


Do it the legal way.

You may ask, “Then how do I get rid of people?” We say, do it the legal way. Provide every underperforming employee with documentation advising them of their shortcomings. Make sure that at least one or two of these documents say something along the lines of “if you don’t improve, we will have to terminate you.” Your documentation should also list specific examples of offending or wrong behavior.

It’s also important that you treat every employee the same way. This means that if you would not fire your best employee for behavior or mistake, you should not terminate your worst one for it, either.

It also means that you should not terminate someone just because you don’t like them, or because they annoy you. People should not be terminated because they are different than you or anyone else. Other than workforce reduction, employees should only be terminated if their job performance is causing a degradation of patient or client care, or of the culture in your practice.

If all this is too much to remember, then just treat all of your employees the way you would want your spouse or children to be treated. Remember that if a wrongful termination suit goes to trial, the people in the jury will be employees, not business owners. Which means that the odds are in the employee’s favor that the jury will be more sympathetic to them.

Need help navigating the termination or retention of employees while reducing the risk of wrongful termination lawsuits? Your HR and Training Managers are here to help! Reach out with any questions you have!

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