By: David Briggs
As seen in: Silverton Health’s Healthy Business Journal
As an employment lawyer, I am often asked if terminating a certain employee is legal. Again, as a lawyer, I am bound by oath to tell people: it depends. While Oregon is an at-will state – and employees can be fired for any reason – employers cannot terminate employees for protected reasons. Employees can be protected because of who they are (sex, age, race, national origin, religion, etc.) or what they do (file a workers’ comp claim, complain about wages, try to organize a union, etc.).
Terminating employees can be a difficult process; even more so because it obviously puts the employer at risk of being sued.
Employers should have a termination process that begins with a review of why you are letting the employee go. That part is usually easy. You then need to review the employee’s personnel file and see how much documentation supports it.
The hope is that the documentation shows prior similar misconduct. You do not have to have the exact same conduct, but it can be helpful to categorize performance issues into categories like insubordination, poor attitude, or inability to get along with coworkers.
Next, managers/owners should have a second level of review where someone who has not been involved in the process gets to review whether the documentation justifies a decision to terminate. Keep in mind that unless your conversation is with your attorney, it likely will not be privileged and is subject to discovery in a lawsuit.
You should also be thinking about the termination from the employee’s perspective. What will the employee say is the reason you are letting him/her go? Will s/he be surprised? If an employee is surprised by a termination, the employee is much more likely to try to sue. So, we want to avoid surprise through good personnel management, which, of course, is usually done through good documentation practices.
Review Whether an Employee is Protected
We tend to see employers struggle with a few groups of employees. The first are those that are frequently absent. Employers of different sizes have different obligations to employees who need to take timeoff.
All employers have to allow employees to take time off when an employee is injured on the job. But, once an employer has six or more employees, they also have to start accommodating an employee’s disabilities (but not necessarily those of their family members).
The question ‘what is a disability’ can be complicated. Disabilities can include epilepsy, depression, migraines, addiction, and much more. If an employee is requesting time off related to the disability, employers may have to accommodate it.
Employers with 25 or more employees have even more obligations under family leave laws. There, if an employee or a member of the employee’s family has a serious health condition, you may be required to give the employee up to 12 weeks of leave.
What frequently frustrates employers is when the reason for terminating the employee has nothing to do with the absenteeism issue. For example, a bookkeeper takes some time off for surgery. While she is out, you begin noticing
large errors and that vendors are not being paid. You then want to terminate her for poor performance.
The problem in that case is the timing. You would be terminating the employee while she is on (potentially protected) leave or shortly after returning from it. While you may not care about the leave, the employee may argue that the leave was the motivating factor in the termination, not the poor performance.
In addition to struggles with absenteeism, we also tend to see employers sued for retaliation. Here, employers often get frustrated with those ‘frequent flyers’ of your HR department. Unfortunately, the employee most apt to whine and
complain is most likely to have complained about something that was protected. Once protected, the employee can be difficult – if not impossible – to fire.
Finally, be careful with long-term employees. Juries care about how long someone was employed with your organization. While a twenty-year employee is still an at-will employee, I think we can all acknowledge that you treat those long-timers a little differently. More documentation and a better reason to terminate are usually expected.
Protecting Your Business During Termination
I recommend telling the person why you are terminating them. You want to set a consistent message to the
employee. We also do not want the employee filling in their own reasons for the termination (i.e., “I’m only getting fired because I complained about sexual harassment”). Setting that consistent story with the documentation before termination and following that through with your message at termination is important.
Next, make sure the employee is paid everything you owe them. Taking deductions from a final paycheck can result in big exposure.
Finally, consider a severance and release agreement. Those agreements give a benefit to the employee, usually cash, and the employer gets a release of all claims. The agreements certainly are not right for all cases, but can
be a helpful tool if prepared by an attorney.
Employees (especially former employees) can sue at any time. Your documentation is there to help avoid surprise, deter plaintiffs’ attorneys, and to help defend you. Know what the red flags are in terminating employees and be
aware of the timing. If you would like a free termination checklist covering these issues, you can email me at