Response to Betzi re Termination
Cynthia Calvert
3 Posts
I'm having trouble posting replies today, so I'm trying to post this as a message. (Is anyone else having trouble today?)
Hi, Betzi --
You're smart to line your ducks up before termination -- so many employee lawsuits can be avoided with a little pre-planning.
Employee lawsuits typically fall into 2 categories, those based on discrimination and those based on employment torts (infliction of emotional distress, defamation, etc.) (Of course there are other bases for lawsuits, such as retaliation for exercising a protected right and whistleblower statutes, but they are less common.) To protect yourself against the first type of lawsuit, make sure that you are treating the soon-to-be-terminated employee just like other employees. If you haven't fired other employees for similar performance issues, you need to look carefully to see if the employee is in a protected category and if there are grounds for a claim of discrimination. If so, talk with a lawyer first to make sure your business reason for terminating the employee is rock-solid.
To protect yourself against the second type of lawsuit, be careful how you do the firing -- in private, with a plan designed to control emotions. (I have a terminations "cheat sheet" that talks a bit about the meeting in which you let someone go; my email is [email]CynthiaCalvert@CynthiaCalvert.com[/email] if you want a copy.)
A good way to protect yourself is to ask the employee to sign a severance agreement that contains a release. You'll need to give the employee something other than what he is entitled to in order to make it valid. If the employee is over 40 (for federal law; Delaware law may have a different age cutoff), you'll need to add special language to the agreement. I'm not trying to be an advertisement for the legal profession (okay, maybe I am), but it would be good to have an employment lawyer who is familiar with severance agreements draft the language for you.
Hope this is useful. Best of luck!
Hi, Betzi --
You're smart to line your ducks up before termination -- so many employee lawsuits can be avoided with a little pre-planning.
Employee lawsuits typically fall into 2 categories, those based on discrimination and those based on employment torts (infliction of emotional distress, defamation, etc.) (Of course there are other bases for lawsuits, such as retaliation for exercising a protected right and whistleblower statutes, but they are less common.) To protect yourself against the first type of lawsuit, make sure that you are treating the soon-to-be-terminated employee just like other employees. If you haven't fired other employees for similar performance issues, you need to look carefully to see if the employee is in a protected category and if there are grounds for a claim of discrimination. If so, talk with a lawyer first to make sure your business reason for terminating the employee is rock-solid.
To protect yourself against the second type of lawsuit, be careful how you do the firing -- in private, with a plan designed to control emotions. (I have a terminations "cheat sheet" that talks a bit about the meeting in which you let someone go; my email is [email]CynthiaCalvert@CynthiaCalvert.com[/email] if you want a copy.)
A good way to protect yourself is to ask the employee to sign a severance agreement that contains a release. You'll need to give the employee something other than what he is entitled to in order to make it valid. If the employee is over 40 (for federal law; Delaware law may have a different age cutoff), you'll need to add special language to the agreement. I'm not trying to be an advertisement for the legal profession (okay, maybe I am), but it would be good to have an employment lawyer who is familiar with severance agreements draft the language for you.
Hope this is useful. Best of luck!
