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Some things in life are no fun – and firing an employee can almost certainly be included Thinkingon that list. But if you’re a manager or an HR professional, it’s an inevitable part of doing business. When the time comes, ease the burden by being prepared, being fair and being professional. And, be knowledgeable about the reasons why you can – or can’t – terminate a person.

Discrimination & Retaliation
Most employees in the U.S. work “at will” which means you can fire them at any time you deem necessary, unless your reason is illegal. Generally, federal and state law prevent termination due to discrimination or retaliation.

  • Discrimination occurs when an employee is fired due to age, race, gender, national origin, religion, sexual orientation or disability. This includes termination related to a pregnancy or related condition.
  • Retaliation occurs when a person is terminated because they asserted their rights under anti-discrimination laws.

Other Legal Violations
It is generally illegal to fire an employee for:

  • Refusing to take a lie detector test. This is dictated by the federal Employee Polygraph Protection Act.
  • Being an alien. The federal Immigration Reform and Control Act (IRCA) prevents most employers from using a person’s alien status as a reason for termination, as long as the employee is legally eligible to work in the U.S.
  • Complaining about OSHA violations. The Occupational Safety & Health Administration mandates that it is illegal to fire a person for complaining that work conditions fail to meet federal or state safety rules.
  • Violating public policy. While laws vary, most states prohibit firing employees who violate public policy; that is, termination for reasons most people would find morally or ethically wrong. This could include an employee’s refusal to commit an illegal act, such as lying to a government auditor; complaining about an employer’s illegal conduct such as failing to pay minimum wage, or exercising a legal right, such as voting or taking family leave.
  • Engaging in lawful political activity. This refers to non-disruptive advocacy related to an employment concern that takes place on an employee’s own time and in non-work areas. It is subject to any restrictions imposed by lawful work rules.

Contracts
If an employment contract exists, you must treat an employee fairly and fire only for “good cause.” While this definition can vary from state to state, examples generally include:

  • Poor performance
  • Low productivity
  • Refusal to follow instructions
  • Habitual tardiness
  • Excessive absenteeism
  • Possession of a weapon at work
  • A threat of violence
  • Violation of company rules
  • Criminal activity
  • Endangering health or safety
  • Revealing trade secrets
  • Harassment
  • Disrupting the work environment
  • Preventing coworkers from doing their jobs
  • Insubordination

A word of caution: An implied contract can be just as legally binding as a written one. For instance, courts have ruled in favor of employees who were verbally promised job security and later terminated.

Needless to say, termination is an action to be taken seriously – and not an area where you want to make an error due to poor judgment or lack of information. A knowledgeable staffing firm can help, as you comb through and seek to understand related legal requirements. Contact the professionals at PrideStaff Modesto to learn more.

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