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EMPLOYMENT LAW GUIDE: - page 73 / 134





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4. Listen to Whistleblowers: Most employers realize that they cannot fire an employee for complaining to a regulatory agency about possible violations of law. But internal whistle blowers may be protected as well, as long as they have a reasonable belief regarding possible violations. Investigate all compliance concerns raised (and resolve the problem, if the employee is correct).

5. Be Honest About the Reason for Termination: Employers who lie in court about why they fired a person in a protected category may be found to have a discriminatory motive. Employers must scrupulously avoid giving false reasons from the beginning, even those intended to spare the employee’s feelings, or to hide undesirable -- though legal --- reasons, such as cronyism.

6. Strive for a Soft Landing: Although employers may legally fire employees without good reason and without notice or warning, callous terminations increase the risk of being sued, especially with a long-term employee with a basically good record. Failing to give reasonable notice and to offer a fair severance package can cost more money than it saves.

7. Document Employee Performance: Employees who are terminated for misconduct or failing to adhere to performance standards should have such shortcomings documented in personnel records, either through performance appraisals or records of warning. Where the reasons for the termination are not documented or, worse, where the record suggests the opposite, the employer leaves itself wide open to discrimination liability as a result of false reasons.

8. Follow Personnel Policies on Discipline: Elaborate progressive discipline policies, despite “guideline only” and “at-will” disclaimers, can give rise to breach of implied contract claims or provide evidence of pretext when the procedures are not followed.

9. Don’t Use Terminations to “Send a Message”: Employers sometimes make the mistake of demonstrating the consequences of employee misconduct by publicizing a termination orally or by conducting it in a public way (e.g., escorting the offending employee out of the building in full view of the staff). Such treatment may not only create liability, it is not a sound business practice. All terminations should be conducted as discreetly as possible.

10. Pay Attention to the Details: Terminations are highly regulated affairs. Even where the decision to terminate is proper, and the termination has been carried out appropriately, employers can make a mistake by ignoring secondary issues regarding wages and benefits. Don’t forget to hand terminated employees their last paycheck, don’t forget to offer extended health care coverage under COBRA or “Mini-COBRA, and don’t forget to inform terminated employees of other rights, such as the right to file for unemployment benefits.


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