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How to Fire an Employee Without Being Sued

Posted by John Hamilton | Jul 15, 2015 | 0 Comments

Firing an employee is never pleasant, even if you think he or she deserves it. Bringing a wrongful termination lawsuit can only add to the unpleasantness. No doubt you'd rather be focusing on your business than going to court.

So how can you avoid getting sued after terminating an employee? Here are a few things to keep in mind:

Where There's an At-Will, There's a Way

Nearly all employment is “at-will,” meaning employers don't need just cause for firing an employee. And most employment contracts, while specifying pay, benefits, and other employment parameters, aren't for specific amounts of time.

So the general rule is that you can terminate an employee for any reason or no reason at all. But there are some important exceptions to the rule.

Don't Discriminate

While it may seem obvious that discriminatory hiring and firing are illegal, federal employment law prohibits firing an employee because of his or her:

  • Race
  • Gender
  • Religion
  • National origin
  • Disability
  • Age
  • Pregnancy

In addition, state or local anti-discrimination laws may prohibit firings based on sexual orientation or gender identity. Discriminatory firings are your fastest way to a lawsuit.

Don't Retaliate

You also can't fire an employee for exercising his or her employment rights under state or federal law. If an employee files a harassment or discrimination claim, a complaint with OSHA, or otherwise reports illegal or unethical business practices, he or she may be entitled to whistleblower protections.

Or if he or she files a workers' compensation insurance claim, you can't terminate an employee in retaliation. Any time you lash out at an employee through firing, you're inviting a lawsuit.

Additional Protections

There are other protections available to employees to shield them from firing: union participation, jury service, and military service chief among them. The best way to make sure you don't get sued for firing an employee is to consult with an experienced employment law attorney before the termination.

About the Author

John Hamilton

John J. Hamilton – Attorney is a solo practice. I personally handle every client's matter. I am a “roll-up-the-sleeves” hands-on attorney. I employ no other attorneys, paralegals, or legal secretaries. Clients can expect me — and no one else — to write every legal letter, write every legal docum...


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