Employment for most employees in the United States is “at will.” This means that the employee can resign or the employer can terminate the relationship at any time and for any reason – unless that reason is against federal or state law.
What Are Illegal Reasons to Fire Someone?
Firing for discrimination is not only illegal; it’s complicated because some things not considered discriminatory at the federal level may be so at the state level. According to the EEOC (Equal Employment Opportunities Commission) it is illegal to discriminate against someone because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic.
It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, was a “whistle blower,” or participated in an employment discrimination investigation or lawsuit. The law essentially forbids discrimination in every aspect of employment.
Labor Compliance Issues Due to Health & Safety
Employers can also realize labor compliance issues when the reason for termination involves health and safety (OSHA) concerns that an employee complains about; their refusal to take a polygraph test; or reasons involving public policy such as an employee taking time off work to vote; an employee refusing to take part in illegal activity; or, an employee calling out illegal activity perceived to be taking place at or on behalf of the employer’s business.
An employee who quits because their employment environment has become intolerable due to bullying or harassment could actually be considered constructively discharged. In other words, the employer could be held liable. The “at will” circumstances of most employment situations can end up on shaky ground if an employer decides to terminate an employee a week before bonus check eligibility would have kicked in- or terminating an employee for not showing up for work when they were legally entitled to employment leave.
Maintaining Compliance in Employee Termination
The best way for employers to strive toward legal compliance in their termination practices is to take advantage of human resources technology by keeping solid records. Timesheets, performance reviews and disciplinary forms should all be maintained in an organization’s human capital management system to ensure they avoid any of the illegal reasons to fire someone. There should be a sense of consistency with record-keeping and it should provide a concrete baseline for termination decisions. Without documentation, an employer has little to no proof about the circumstances surrounding a person’s employment situation and termination.
This blog is for informational purposes only. Please seek your organization’s legal counsel for any questions regarding specific employment law.
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