An ex-employee's wrongful discharge action against an employer is more likely today. That's because laws and court decisions, protecting employees and expanding on employees' rights, have increased.
So, what are the employer, manager and supervisor to do?
Begin by understanding the concept of wrongful discharge. Wrongful, as in illegal and unfair. And discharge, as in termination. So the ex-employee, in filing a legal action against an employer and claiming wrongful discharge is asserting the termination violates a legal right or a legal protection, or violates an employer's promise or commitment, or violates the unwritten provision in the contract of employment that the employer and the employee will deal fairly with each other.
Examples: Two obvious examples of employee terminations which are wrongful discharges:
An employee is injured on the job and files a Workers' Compensation claim. The employer reacts by terminating the employee because the employer wants to send a message to the other employees that they shouldn't file Workers' Comp claims. This is not legal for the employer to do. Employees have a legal right to Workers' Compensation. The employee's termination is a wrongful discharge.
An employee is pregnant and tells her employer she will need to take a pregnancy leave in three months. The employer reacts by terminating her. The termination violates the pregnant employee's right to protection from discrimination because of her pregnancy. The employee's termination is a wrongful discharge.
Two less obvious examples of employee terminations which may be wrongful discharges:
An employee is injured on the job and files a Workers' Compensation claim. The employee is off work for a month, and then returns to work. But the employee's performance is poorer than before the Workers' Comp injury. Over time, the employee's performance does not improve and the employee is terminated. The employee files a wrongful discharge action, asserting that the real reason for the termination was retaliation for filing the Workers' Comp claim.
An employee, a woman, has worked for the employer for a dozen years. Then the employee's job is changed. In the new position, the employee's performance isn't the best. Her supervisor begins criticizing her performance. Finally, the supervisor terminates her. She files a sex discrimination action and a wrongful discharge action against the employer.
1. Don't terminate an employee in violation of a law that protects employees. There are dozens of laws (including common law and court decisions that have developed protections for employees over the years) that employers, managers and supervisors need to know about. Unfortunately, too many people in decision-making positions aren't aware of many of these employee protections.
2. Don't terminate an employee for exercising a legal right. For example, employees (under OSHA laws) have a right to work in safe conditions. Employees have a right (under labor laws) to discuss work conditions, including wages and benefits, with coworkers. So don't terminate an employee for complaining about unsafe working conditions. Don't terminate an employee for discussing wages with coworkers.
3. Make sure all managers and supervisors know the "contract of hire, the employment contract" that the employer has with each employee, and that they abide by the terms, conditions and promises in the contract. Inform managers and supervisors that a contract exists with all employees. Make sure they know what the terms and conditions of this contract are. For almost all employees, this is not a formal, written contract. Rather, the terms and conditions are made up of (1) oral and written promises made to employees at the time they are hired, (2) terms and conditions of employment, and promises, spelled out in the written employee handbook, in memos and in other written documents, (3) and common practices in the workplace that employees come to rely on.
4. Give managers and supervisors training in the topics in items 1, 2, and 3 above. Inform them of the employee-protection laws (such as the civil rights laws) that employers must abide by. Inform them of the legal rights that employees have. And explain to them all the terms and conditions of employment, and the promises made to employees (such as benefits) that make up the employment contract with employees.
5. Set up a disciplinary procedure and follow it. Treat all employees the same way in similar circumstances. Don't let some managers and supervisors act like "wild cannons" in their discipline and termination decisions.
6. Don't allow managers and supervisors to fire an employee abruptly, in a moment of anger. Require a cooling-off time before a termination decision is made. This cooling-off period should be long enough for the manager and supervisor to review all the circumstances involved in a possible termination, discuss the decision with one or two other management-level people, and even run the decision by a human resources professional or an attorney.
7. Document every incident, conversation, and action related to the circumstances that lead up to a possible termination. Before terminating an employee, make sure adequate documentation exists in the employee's file to justify the termination.
8. Have a disclaimer in your employee handbook that includes a statement that the handbook is not a contract of employment, and a statement that asserts and spells out the employer's employment-at-will rights. (Note: See item 3, above. Remember that even though the handbook may not be a contract, any promises made to the employee in the handbook -- such as promises of benefits -- may become part of the employee's contract of employment.)
9. Hire correctly in the first place. Hire the people who have the attitudes, aptitudes, skills and qualifications to succeed in the positions they fill. This reduces the chances that employees become dissatisfied in their positions, with dissatisfaction leading to criticism and conflict that lead to termination and the risk of a wrongful discharge action.
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