Caution: Some Employee Conduct is Protected

Fire an employee for the wrong reason — or in the wrong situation — and the employee could claim retaliation and file a lawsuit.

Several activities by employees are off-limits to retaliatory actions such as firing or disciplinary action.  Any retaliation by the employer could spell potential legal trouble, such as a wrongful termination lawsuit.

Here are three areas of protected employee conduct:

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Workplace Retaliation: Reduce the Chances of a Claim

In order to prevent illegal retaliation from occurring in your workplace, you have to understand some basic definitions:

  • Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity.
  • An adverse action is taken to keep someone from opposing a discriminatory or harassing practice or participating in an employment discrimination proceeding. Examples of adverse actions include terminating an employee, denying a promotion and giving an unjustified negative performance evaluation.
  • For purposes of federal employment laws administered by the EEOC, covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.  Individuals who have a close association with someone who has engaged in protected activity are also covered.  For example, it is illegal to terminate an employee because his employee-spouse participated in employment discrimination litigation.  Note: In addition to the employment laws administered by the EEOC, retaliation can occur against individuals who may be protected by other federal, state, or local laws.  This includes the federal Family Medical Leave Act and whistleblower laws that bring attention to ethical, financial, or other concerns
  • Protected activity includes opposing a practice believed to be unlawful discrimination.  For example, an employee complaining about treatment he or she believes is discriminatory — directed at the employee or a co-worker.  Protected activity also includes participation in an employment discrimination proceeding or requesting a reasonable accommodation based on religion or disability.

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Top 13 Common Firing Mistakes Made by Managers

Firing an employee is never an easy task, however there are certain mistakes you can make which can land your company in hot water.  Read the list below of 13 of the most common mistakes managers make when terminating an employee. Continue reading

Dilemma: How Long to Hold a Job Open

Occasionally, employees want or need to be away from work after they question-685060_1280have used up all their accrued vacation, paid sick leave, and paid personal time off. For example, an employee may be out collecting Workers’ Compensation benefits for months, even a year or more. So, you need to let employees know the circumstances under which they may take unpaid leaves, how long you may hold a job open, and when employment terminates. Here’s an example of a dilemma an employer might face.

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Don’t Let Progressive Discipline Bind You

Most employers use only three choices when it comes to dealing with problem employees: oral warning, written warning (as in, “I’m writing you up!”) and firing.

But there’s a better approach.  Arm yourself and all managers and supervisors with a progressive discipline procedure – including seven choices.

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A Manager’s Guide to Employee Documentation

It can not be stressed enough how important it is to have thorough documentation in an employee’s file, especially prior to an involuntary termination.  You may have heard before, “If it isn’t in writing, it didn’t happen” and this is often true when it comes to lawsuits for alleged discrimination, wrongful termination, etc.

The problem is, a lot of managers don’t know how to document, or even worse – what to document.

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You’re Fired! Not so fast! Know the Risks Associated with Terminating an Employee for Poor Performance

It’s a common scenario: you hire an employee for a position and after their training period they continuously make mistakes and do not meet your performance expectations. The poor performance could be for a number of reasons: they need further training, they have personal distractions keeping them from performing up to par, or maybe they’re just not the right person for the position at your company.  So you decide to terminate their employment and find a new employee to take over their job responsibilities.  Without proper documentation to support your termination, you could be facing a number of potential liabilities.

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