Wrongful Termination Lawsuits: 5 Ways to Avoid ‘Em

“’This is an employment-at-will state, and I can fire you for a good reason, a bad reason, or no reason at all.’ Technically, this is true in most states, but in effect it is a lie which employers rely on at their peril.” (From BIG LIES: “The check’s in the mail,” and “I can fire you for a good, bad, or no reason” by Constangy, Brooks & Smith, LLP)

It’s seldom easy to fire an employee – and this especially holds true when your actions might lead to a claim of wrongful termination. For your reference, five guiding thoughts to ease the difficulties of workplace dismissals and minimize the impact of wrongful termination claims:

1. “Employment at will” doesn’t mean you don’t need a reason for letting an employee go:

“If you take the proper steps your employee will be At-Will and you will have a better defense in a wrongful discharge claim made against you. Employment At-Will doesn’t relieve you of your obligations under State/Federal Discrimination laws. Also, if you don’t give a reason for termination your former employee will file a charge or get an attorney to get that answer.” (From A Dozen Tips to Prevent Employment Litigation by Dinsmore & Shohl LLP)

2. Sometimes “firing” isn’t the best solution after all:

“Fortunately, there is an alternative to firing an employee who must be let go, one that greatly reduces the risk of liability and greatly reduces the stress on employer and employee alike. Simply stated, the solution is this: instead of just going ahead and firing Joe, negotiate a separation agreement with him.” (From Avoiding Wrongful Termination Liability by Ropers, Majeski, Kohn & Bentley)

3. Loose lips sink more than just ships:

“Employers should limit the details they provide to third parties, such as new employers, friends and family, and of course, newspapers. When discussing the reasons for the termination, the employer should reveal only facts that have been substantiated. Opinions should be avoided. When an employer knowingly publishes facts that are unsubstantiated, it faces a potential claim for defamation, false light and other privacy related claims.” (From Watch “Loose Lips” Statements in Terminations by Williams Kastner)

4. Three words: document, document, document. Employees are doing the same:

“If your case involves discrimination and harassment claims, and you complained about your co-worker and supervisor’s conduct to the manager or the HR department, having those complaints in writing (e-mails, etc…) will also be very helpful in rebutting the argument … that you never complained about anything.” (From How to Decide Whether It’s Worth Suing for Wrongful Termination by Arkady Itkin)

5. If your employees can claim they didn’t know, then they are probably not “at will:”

“To reduce the chances that oral assurances or statements contained in employment literature are construed as a modification of an employee’s ‘at-will’ status, all employment handbooks should contain a statement reaffirming the at-will nature of the employment relationship.” (From Top 10 Employment Handbook Mistakes by Barry Hersh)

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Extra hit, because you know you want it:

6. Medical marijuana laws aside, if an employee is stoned on the job, it’s probably safe to fire her:

“In a case that has been closely watched by the employer community, a Federal Court has held that Wal-Mart did not unlawfully terminate an employee who tested positive for marijuana in violation of company policy even though the employee possessed a registry card under the Michigan Medical Marijuana Act.” (From Michigan Medical Marijuana Act Does Not Prohibit Termination for Positive Drug Test by Warner Norcross & Judd)

“A developing exception to Washington law of employment at will is the tort of wrongful termination in violation of public policy. This narrow exception was recently tested … when a new hire employee asserted that her employer had violated Washington public policy for terminating her for a positive drug test for marijuana.” (From Medical Marijuana User Not Protected from Termination by Williams Kastner)

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