5 Questions to Think About Before Terminating an Employee

When you run a company in New York or anywhere else you can’t always anticipate how long every employee will remain with the business. Inevitably, you may be in the situation where you have to let go of an employee, and it could get complicated. The manner in which an employer deals with terminating an employee can greatly impact the results. Exploring ways to make these decisions before going through the actual process can go a long way to help reduce the possibility of being sued for wrongful termination. Here are questions to think over before terminating an employee: 

1. Can you articulate the reason for termination?

Employers must be able to provide the reason for the termination. Is it due to economic factors, (such as eliminating a position), reducing the workforce, or is it a performance-based decision? When it is based on economic factors, such as if the position is being phased out and not replaced, it’s usually a legitimate business reason for the termination. However, if it is performance based, hopefully there are past performance reports, including things like a performance improvement plan and/or warnings in the employee file to help justify the decision.   

2. Is the employee a member of a protected class?

An employee can’t be discriminated against due to certain factors, including age, citizenship, disability, marital status, national origin, race, religion, sex, sexual orientation, among others. Obviously, whether an employee falls under the protected status doesn’t preclude employers taking any action against them. However, you should recognize whether the employee is classified under a category that is protected by state, local, or federal law because of the possibility of a potential discrimination claim. This highlights the importance of being able to identify the legitimate justification for the termination of a protected employee.  

3. Has the employee made a recent complaint or an accommodation request?

When employees make complaints about harassment, discrimination, safety issues, or other concerns, some employers opt to get rid of them instead of addressing the issue. This can’t be a reactionary response: You have to tread lightly here because an employee might have a claim for retaliation. This is possible even if the initial complaint isn’t valid.   

4. Are there any applicable collective bargaining or employment agreements

Most NY employees are “at will” employees, which means that they aren’t guaranteed employment for any fixed period and may be discharged anytime for a good or a bad reason, or for no reason at all, so long as it’s not for an illegal reason, such as discrimination or retaliation. The exceptions to this are collective bargaining and employment agreements; for instance, union agreements generally require a showing of “cause or misconduct.”   

5. Are there any restrictions to prevent the employee from soliciting clients or joining a competing business after termination?

You should review any existing agreements that prevent the employee from going after clients following termination. This may be found in the employment agreement or in separate non-competition/confidentiality agreements.     

Before Terminating Employees, Talk to an Attorney

Overall, it’s a good idea to plan terminations after careful contemplation. Ask questions and consider the possible legal consequences of the decision, especially concerning legally protected employees. Consult with an experienced attorney familiar with employment law. Thankfully, you can get help from one of our highly qualified MOWK employment law lawyers. Contact us today to get started.