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November 16, 2014
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September 14, 2015

To Fire Or Not To Fire?

The employer and employee relationship may not always go as planned, and you may need a lawyer to guide you through the process of parting ways with an employee. Letting someone go is never easy, but if not done correctly it can be costly both at the time and afterward.

Before you make an on the spot decision to terminate an employee, you really should step to back to consider all of the liability standpoints.
fired– Certainly, the employment contract needs to be checked out if there is one. Indiana, being an at-will employment state, generally gives wide latitude to an employer deciding to terminate an employee. That being said, it never hurts to check.

– Is there any possibility that the employee will try to allege a wrongful termination claim? Though difficult to prove alone, there are circumstances in which courts have found claims to exist and have serious merit.

– Have you considered the immediate cost to the company? What will happen to the terminated employee’s workload? Does the employee have keys to the office? What records might the employee have stored off-site? What usernames and passwords does the employee use? Do they have access to bank accounts? Has the employee documented his or her procedures? Do any usernames and passwords of the former employee need to be disabled to prevent any unwanted intrusions and precautions taken to ensure that passwords are in a safe place and with more than one person.

– Do you have an employee handbook? Is your decision consistent with the policies set forth in your employee handbook? Has there been sufficient time to attempt to correct problematic behavior and issues?

– Does the employee have outstanding earned leave time due and owed to them? How are you going to ensure that he or she is properly compensated? Have you considered potential claims under the Wage Claim and Wage Payment Statutes?

– Have you safe-guarded your business to protect against potential harassment claims? Is the terminated employee a part of a protected class of persons?

– Have you considered offering a severance package in exchange for a mutual release of claims? If so, what is in the release? For instance, to successfully obtain an age discrimination release, which is designed to protect employers from age discrimination claims in some cases, the employer has to comply with a waiting period requirement. See Older Workers Benefit Protection Act (“OWBPA”). If there is a desire to offer a severance package, this can work for the benefit of the employer to improve the chances of a smooth transition. Severance agreements can be nuanced and require knowledge of the specific situation.

– Have you considered the reputational consequences of the terminated employee?

Firing an employee is an unfortunate, but necessary, aspect of running a business. Dillon Legal Group, P.C. is here to help in these types of situations. We can also suggest techniques for protecting your data and taking other preventative measures that can be part of your business plan.

Dillon Legal Group. Protecting your best interests.