November 2005

Letting them go

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Terminating employees carries a set of legal implications

by Victoria L. Donati and Jason C. Kim
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As you probably are aware, many employment-related lawsuits arise from the termination process. For example, an employee can sue you because he believes he has been terminated unfairly or decide to proceed with a claim he may have been harboring because of how he perceives to have been treated. Because of these possibilities, it is critical you pay careful attention to the termination process.

In this article, we briefly will explore the three basic ingredients of every termination: the reason for the termination, how the termination decision is communicated and the aftermath. We also will offer advice for keeping each step in the process legal. When it comes to terminations, you must consider not only the technicalities of what may or may not be legal but also how the termination will be perceived by the employee and others. If the termination is circumstantially unfair or perceived to be unfair, it may spawn a costly claim or lawsuit even if of dubious legal merit.

Keep in mind there are additional considerations beyond those explored in this article if you employ a union work force. For example, collective-bargaining agreements typically impose a "just cause" standard for termination inconsistent with at-will employment, and employees may have certain representational rights during investigatory meetings that might lead to discipline or termination. Other special rights may apply, as well. If you have a union shop, consult your legal counsel for further guidance before proceeding with a termination.

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