How Should a Business Terminate an Employee In Order to Avoid Litigation?
First, our firm recommends that the company review all documents related to the upcoming termination with their legal counsel to ensure that the termination is lawful. These documents include emails between the company and the employee, a copy of the employee’s personnel file, and any other documents that the company would rely on to support the termination. Our firm reviews these documents and ensure there are no red flags with termination.
Second, our firm analyzes whether the employee is in a protected class and what laws apply to the company depending on its number of employees. For example, Title VII of the Civil Rights Act of 1964 applies to companies with 15 or more employees. Title VII covers discrimination based on certain protected classes, such as race and gender. Another law that we consider is the Age Discrimination in Employment Act (ADEA), which applies to companies with 20 or more employees, and covers employees that are 40 years old and up.
Generally, our firm wants to know how many employees does your company have, and what are the characteristics of the employees. We account for characteristics like age, gender, and race. This is so we understand what potential causes of action could arise if the employee decides to sue the company.
Here in DC, Maryland, and Virginia, it is difficult for an employee to sue the employer based on their termination. There’s no cause of action for “wrongful termination,” but an employer can be sued if the employee believes the termination is due to their status as a protected class member, or in other words, if the employee thinks the employer has terminated them in violation of Title VII or the ADEA, or another local or state law.
We want to ensure that all applicable laws are being followed and that the company is not unnecessarily stepping on any land-mines from a legal standpoint. We review all of the documentation in support of the termination to ensure that the company has papered the record appropriately.
Third, we have a discussion with the decision makers to ensure that they are aware of the various risks of terminating this particular employee. When you’re severing a relationship with someone in the workplace, the spectrum of risk shifts depending on who you are terminating and under which circumstances termination is taking place. What I like to do for my corporate clients when we’re going through a termination is make sure that they understand all of the legal risks associated with the action that they’re about to take.
Sometimes the company will ask me for a recommendation on whether they should terminate the employee. Ultimately, it is the company’s decision on whether they move forward with termination. But, I will make sure that they know all of the legal risks associated with the path forward. I treat my clients as if I was in their shoes; what would I do? Then, if they ask me for a recommendation, I will provide one. Generally, you want to try to proceed with eyes wide open and know all the risks you’re about to take.
If the company does decide to move forward with termination, then we assist with any documents that would come out of that process. For example, we’ll draft termination letters and severance agreements if the company decides to provide a severance package to the employee. Some organizations have a severance plan document; our firm has seen all types of severance packages and offerings.
A big piece of employment separation work is addressing the emotional dynamic and the emotional intelligence side of the equation. Dedicating attention to how the company’s actions are going to make the employee feel makes a huge difference as to whether or not an employee decides to take legal action against the company. A lot of it has to do with how the company proceeds from an H.R. standpoint and from a human standpoint in carrying out the termination.
Our firm heavily focuses on our role as an attorney and counsellor at law. I coach and counsel my corporate clients through this difficult process. It can be particularly taxing, especially if an employee is toxic to the workplace, has health or disability issues, or is grappling with mental illness or an addiction. We provide talking points for the termination discussions to reduce the stress levels of our clients and make the process easier on them. We’re there to make sure that the company is covered on the legal compliance front, following best HR practices, and protecting its workforce.
We also handle negotiations if the employee engages legal counsel, and aim to resolve claims quickly and efficiently. We provide full support after the employee relationship ends. If any type of employment claim is filed in court, we aggressively defend the company. If the employee takes confidential information, we can also prosecute a claim against the employee for violation of a trade secrets statute or for stealing information from the company, or we can protect the company’s rights by sending a cease and desist letter.
For more information on Terminating An Employee Without Litigation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (703) 896-7704 or emailing our firm at firstname.lastname@example.org.
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