It is inevitable that there are times when an employer will have to perform the unpleasant task of firing one or more employees. Though this undertaking is not usually an enjoyable one, with a little preparation, it can be handled in a manner that minimizes an employer’s potential liability.
When an employer is dissatisfied with an employee’s behavior or performance and, as such, wishes to terminate the worker’s employment, the first factor to consider is whether the individual’s employment is governed by a written contract. Usually, where there is a written contract, express terms govern the conditions under which an employee may be terminated. However, under certain circumstances there may also be implied contracts to consider, including oral promises made at the time of hiring and provisions contained in the employee handbook. If such discussions or handbook terms are not intended to be contractual, the employer must make this explicitly clear from the beginning.
The majority of workers in Massachusetts are “at-will employees,” who may be terminated for any reason or for no reason at all, as long as the termination is not illegal or violative of public policy. For example, an employer may not terminate an individual’s employment for discriminatory reasons or because the employee was asserting a legal right, such as filing workers’ compensation papers or “whistle-blowing”.
To avoid any confusion upon termination, it is advisable that, upon hiring a new worker, employers immediately discuss the employee’s position in a manner that makes clear that the worker is an “employee at-will.” For example, the worker’s salary should be in terms of dollars per week or per hour, and not per year, indicating the employer’s intention not to be bound to a long-term contract. Further, the employer should maintain an employee file consisting of all documentation of job performance, including records of regular reviews, complaints, reprimands, etc.
Upon termination, an employer must be sure to pay an employee all wages due, including any accumulated vacation pay or other reimbursable benefits. The employer must also provide required information as to unemployment benefits and, if applicable, COBRA rights to maintain coverage under the employer’s insurance coverage plan. The employer should also conduct a brief termination meeting, where the employee is notified of the reasons for the termination. The employer should never fabricate reasons, even in an effort to spare the employee’s feelings. It is also a good idea to have a witness, such as a resources representative or another supervisor, at the meeting to witness the events that transpire. At the meeting the employer should obtain any property of the employer’s that is in the employee’s possession.
By considering these simple safeguards, an employer can greatly minimize potential lawsuits and other problems that often result after a worker’s employment is terminated.