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How To Legally Terminate An Employee

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Running head: HOW TO LEGALLY TERMINATE AN EMPLOYEE

How to Legally Terminate an Employee

Abstract

Statistics reveal that approximately four out of every one hundred workers are fired or resign from their jobs each month, and an estimated one million workers are fired from their jobs each year (S.M. SACK 99). Many people who are fired are done so unlawfully. When a company terminates an employee unlawfully it can create astronomical financial burdens from law suits filed by these employees. In today's society employees have many rights and are protected by laws. Managers must understand these laws in order to protect themselves and their companies from such law suits. This will give advice on the legal way to terminate an employee, and save the company from unnecessary embarrassment and loss of money through legal actions.

Everyday managers are faced with that dreadful task of firing an employee and that question on their mind prior to doing it is probably, "Am I doing this the legal way and will anything come back to haunt me at a later date?" Managers must understand all state and federal laws that pertain to lawful termination and employee rights, the way they do this is by reading company policies and researching all the laws that cover these areas and there are many out there.

In order to have a better understanding of how to legally fire someone, you must first understand what "employment-at-will" means and what the exceptions to it are. The basic form of the employee and employer relationship in the private sector is employment at will. Employment at will happens when the length of the employment is not for a specific time and there is no written contract. During the time of employment the employee or the employer can end the relationship for any reason with five exceptions, which will support a wrongful termination. The first exception is a contractual relationship; it exists when employers and employees have a legal agreement regarding how employee problems are dealt with. In this type situation, a discharge may occur only if it is based on just cause. The second exception is statutory consideration; simply put the law is on the employee's side and is there to protect them against any form of discrimination. The third exception is public policy violation; this means that an employee can not be fired because they fail to obey an order from a supervisor that was illegal. The fourth exception is an implied employment contract; this is any written or verbal statement made by members of the company that suggests company guarantees or promises about continued employment. The fifth and final exception is the breach of good faith; this is a Federal law that makes it illegal for employers to terminate a worker based on the employee's race, gender, national origin, disability, religion or age. It also prohibits employers from firing someone because they are pregnant or have recently given birth.

Now let us take a look at some of these laws and how they effect your decision to terminate. The first one is the Age Discrimination in Employment Act (ADEA) of 1967 prohibited the widespread practice of requiring workers to retire at age 65. It gave protected-group status to individuals between the ages of 40 and 65. Since 1967, this act has been amended twice-once in 1978, which raised the mandatory retirement to age 70, and again in 1986, where the upper age limit was removed altogether. As a result, anyone over age 39 is covered by the ADEA (David A Decenzo & Stephen P. Robbins 2005). There are a few exceptions to this law, such as commercial airline pilots. They may not fly an aircraft upon reaching the age of 60 due to the decline in their skills during emergency situations. In Steven Mitchell Sack's book "Getting Fired"; he gives an example about a lady named Susan who is a sixty-one year old manager, who was fired from her job after fifteen years. She sued the company and its president for age discrimination. The employer insisted that her lay off was due to a budget cut. Susan on the other hand argued that after the new boss came on board, older employees were systematically replaced and senior position filled with younger workers. The jury ruled in Susan favor. It found intentional discrimination in the department's failure to rehire her for a position that was created several months after her termination. The company hired a younger and less-qualified individual, which the jury found to be evidence of retaliation against Susan for having pursued an age discrimination claim. Susan was awarded a whopping $500,000 as compensation for the company's wrongful firing. Under the federal Age Discrimination in Employment Act, the award was doubled to $1 million because the jury found the discrimination to be intentional, knowing, and willful. Like I stated earlier, as a manager you must be aware of all the current state and federal laws that protect employee's rights, so you can prevent law suits such as this. Data that was compiled by the Office of Research, Information, and Planning from EEOC's Charge Data found that in 2001 age discrimination accounted for 21.5% of unlawful termination (Ullmann 2004).

The next law we will look at is The Americans with Disabilities Act of 1990(ADA) it extends employment protection to most forms of disability status, including those affected with AIDS. ADA doesn't protect all forms of disability, like pyromania and kleptomania; these are psychiatric disabilities and may disqualify an individual from employment. Companies with 15 employees or more must be in full compliance with the ADA. It's interesting to note that contagious disease such as HIV+ and AIDS are considered conditions of being disabled (DeCenzo & Robbins 2005). All companies that fall under the ADA must also make reasonable accommodations for employees, providing it doesn't cause any undue hardship on the company. For example, suppose a worker at a company was in a wheelchair and they needed a special type of desk so their wheelchair could fit under it, or some other type of special equipment needed so the person could do their job, the company would be required by law to accommodate them. When determining if there is undue hardship on the company the courts take the size of the company and the money it has into consideration, this is done on a case base bases. In Michael Sacks book he provides you with a list of accommodations that must be provided to disabled employee and they are:

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