Firing an employee in an at-will employment state

Gracie

We are based in VA, an at-will employment state. We intend to fire one of our employees who has been tardy for quite a while, but his supervisor had not documented any of his tardiness. Could we fire him for "a good reason, a bad reason or no reason at all"?

I've heard from his manager's supervisor that his manager had called this employee a "lazy mexican" some months ago. Are we in for some potential racial discrimination charge if we were to fire him under at-will employment relationship? Please give me your thoughts.

Parabeagle

As much as the doctrine of employment-at-will is touted, it is (in my opinion) NEVER a good idea to terminate anyone without documentation. Regarding the tardiness issue, are there at least time cards you can rely upon as documentary evidence that the individual is consistently late? If so, I think you're ok. Now, however, you also have received information that the individual was referred to as a "lazy mexican" some time ago. Potentially, this could be trouble (especially if the employee heard the comment and took offense to it). If it was an isolated remark, though, it may not rise to the level necessary to create a claim of hostile environment harassment. But at a minimum you should immediately put your supervisors through some harassment training so inappropriate language and comments don't become widespread.

HRsage

I agree with the above. Try to get something documented, good documentation helps a great deal. To the issue of the comment, these are separate issues, but if the ee made a complaint make sure you have all your ducks in a row regarding the tardiness issue before you fire him. Is the manager that made the remark the same manager that should have documented the tardies? If so then he really needs to be retrained on a lot of things. Just my thoughts.

Pork

GRACIE: You can fire, terminate, cancel an employer/employee relationship, or just plain"hit the road Jack" for some reason or no reason at all! However, standing on the corner is A "Richard Swartz" attorney-at-law in our AT-WILL state, and he does not care wheather it is a one day or a 365 day relationship or longer, he knows the way to the EEOC office and he knows just the right way to word the complaint of the x-employee. I have on several cases said "NO" to the department manager/supervisor that has not produced a set of warnings and discipline write-ups required before termination of employees. When I have a head strong and EGO manager/supervisor I refer them to the policy and handbook issued to everyone when they were enrolled into our company or they may wish to schedule a meeting with the General Manager to complain about my lack of support for their desired action of termination without documentation. Two have been so bold to do just that, only to have their "pants with the rear-end torn out" handed back to them on a silver platter. Don't go there! PORK

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 05-13-03 AT 12:41PM (CST)[/font][p]Based on what your completed investigation reveals, my crystal ball shows two writeups in the supervisor's file; one for not following company documentation policy and another for making a racial slur. I would be more concerned about replacing him than the production worker. He will cost you more money in the long term, by far!

Dutch2

We too are in a Right to Work State, but... we have a progressive discipline program and we use it. Of course we make it very clear that depending on the severity of the opportunity the first step may be termination of employmnet. If someone is caught stealing, they don't receive a verbal warning. But for something as simply as being tardy we require the proper steps to be followed. It is not fair to any employee to be fired for something like this if it has never been pointed out to him/her as being a problem and then giving them the opportunity to fix it. I agree with the others in that the Supervisor needs to be be counseled regarding not following policy and not properly documenting the situation and certainly who ever made the ethnic comment should be at a minimum be talked with in no uncertain terms.
Best of luck,
Dutch2

John Barr VA

Gracie,

Documentation and At-Will are two different issues. You don't need any doucmentation to fire the person. If he sues you for firing him (e.g. breach of contract), you simply cite at-will and walk away fine.

If he sues you for race/national origin discrimination, that's where you have the problem. It is harder to win a slam dunk without documentation as to his tardiness, but, you can still file affidavits to that effect. The Mexican comment is harmful in a lawsuit, but I generally think that it's a bad idea to keep a poor employee on simply out of fear of what the person might do.

Perhaps the best solution is to call the employee in and give him a final warning and document that (as in "if you are late one more time you are fired"). That's a legitimate non-discriminatory reason, it gives you documentation, and it takes the decision out of the hands of the manager with poor people skills (thus reducing the impact of his statement).

Hope this helps.

John

Pork

JOHN: We HRs are not in the business of "firing someone". Departmental Managers, who do not lead guide and direct should be the one terminating the employer/employee relationship. Our HR role is to be the police of policy and policy formulation or rules formulation; when appointed to be the investigator with the power of termination, we have no choice but to review the facts and take the appropriate action of termination, when we are the INVESTIGATING OFFICER WITH CORPORATE DECISION. Otherwise, we lose the opportunity to be the counselor of labor. When we remove ourselves from that level or plateu we pull our status and creditability down to the level of Department Manager and that is when unions start to look at your door. The labor party has no voice, and they then seek to organize. I SAY AGAIN, TO ALL HRs STAY ABOVE THE FRAY AND MASHING OF TEETH BE THE PROFESSIONAL PEOPLE PROBLEM SOLVER, FOR AS LONG AS YOU CAN! DON'T JUMP FROM THIS LOFTY POSITION OF HR, TO BECOME JUST ANOTHER MANAGER READY TO TRUMP THE NEXT "SO AND SO" THAT GETS OUT OF LINE.

Just the old pork, honking again

Parabeagle

Alas, Pork, it is unfortunate but often true that we who wear the HR hat are often not only the advisor but also the axe. Personally, I would much rather conduct a termination myself with the manager present and make sure it's done appropriately than to leave such a delicate matter to a manager who does not have the training we do.

Now if you'll excuse me, I'm off to terminate a management team up North.

John Barr VA

Pork,

I appreciate your point of view, but I'm always leery of hard and fast rules. In trying to stay on topic, in a situation like this where there is the potential for a discrimination suit, clearly the lower level manager with the bit mouth needs to be bypassed and HR should be involved even if it's as a witness to a higher level manager's issuing of a final warning. But, to simply say that HR should stay above the fray at all times is to invite trouble when others are not aware of the ramifications of what they might be doing.

Nat

Hi neighbor! I am in North Carolina, also an at-will state, well in theory. At-will does mean you can terminate for a good reason, bad reason, no reason but not an illegal reason. Sounds good BUT.... It has been my experience that you had better have reason. It doesn't fly to just say we at-will so your fired. I would recommend that in this instance someone, preferably manager, with you present, sit down with this employee and give a final warning indicating that he is terminated with next tardy. One of two things will probably happen: 1) he will correct his ways; or 2) he will quit.

Second issue: Your manager needs to be retrained about following policies regarding attendance/tardies, harassment (although I don't really think one comment of this nature constitutes harassment, insensitivity maybe)and documentation. Good luck.