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Managing Non-Performers —Fioernza

November 2006
THE DECISION to discharge a problem employee can seem so right at the time. The employee may be a disruptive and even destructive influence on your workplace, and you know it’s the right thing to do. So why wait? Get it over with quickly; like pulling off a bandage.

Unfortunately for many employers, it’s this “quick trigger” mentality that can make a decision that feels so right, go so very wrong. Too often, the decision to discharge an employee takes place in a perfect storm of high emotions, immediate business needs and disregarded legal rules. Such a decision—justified though it may be—can end up costing your company thousands of dollars in legal fees, back wages to the employee, and could result in that same problem employee being reinstated to his or her prior job.

Think about it. If an employee was a problem before being fired, imagine what he or she will be like after being reinstated. Employment-related lawsuits can also sap your intellectual energy, hurt company morale and cause you to lose focus on your company’s goals.

Learn the Law

The legal risks associated with discharge decisions can be minimized when printers take the time to become acquainted with the legal standards involved well in advance of being faced with a pressing need to discharge a worker. Absent a collective bargaining agreement or an individual employment contract, most employees in this country are employed on an “at will” basis.

In other words, in the eyes of the law, they can be discharged “for good reason, bad reason, or no reason at all.” However, there are numerous and often obscure legal exceptions to this rule.

Consequently, before any discharge decision is made, employers should analyze each situation to determine whether their discretion is limited by an exception to the “employment-at-will” rule.

Review all contracts and other writings. Where an employment or union contract exists, the employer’s right to discharge an employee is most likely encompassed within the “four corners” of that document.

But the analysis should not stop there. Offer letters, performance evaluations, e-mail and other communications should also be analyzed to determine whether the employer’s right to discharge has been limited.

For example, where an evaluation states “you have six months to correct these problems…”, an employer would be hard pressed to discharge an employee after two. Where a salesperson is given a quota of $500,000, an employer is on shaky ground discharging for performance if this threshold has been met.
 

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