Firing an employee happens often and this recession has caused employers to fire many employees. Some cases involve an employee filing a lawsuit for unjustified termination. New York State employers are more protected by wrongful termination litigation than most states because of its ‘at will’ presumption.
Ways to stay out of court after firing an employee:
- Maintain ‘at-will’ condition meaning either the employee or employer can end the employment for any lawful reason and at any time, without warning or cause. Unlawful requital, discrimination, and other illegal reasons are not included.
- Have an employee handbook. Make sure an employee cannot claim that the terms used in the handbook change the ‘at will’ status, making it a contract of employment. Policies written in the handbook may cause the handbook to become an employment contract.
- It is important that you include a disclaimer to reduce this problem. The disclaimer should clearly state that the handbook is not a contract and does not change the ‘at will’ status.
- Have employees acknowledge the ‘at will’ status and provide a signature for their acknowledgment and that they have been given and have read the employee handbook.
Other Wrongful Claims:
- The employee handbook includes in-depth disciplinary actions. Employees may sue for breach of contract because employees were not disciplined by following the disciplinary arrangement before being fired. Make sure you follow all disciplinary policies stated in the handbook.
- This claim is a little tricky, however, it has and can happen: Pre-employment promise by an employer is terminated before the employee had a chance to work. In cases such as this, employees can sue the employer; promissory estoppel claim. There must be proof that the employee accepted the employment offer, resigns from his/her former employer and the new employer made a clear and straightforward promise of employment but terminated the offer before the employee’s first day of work. The employee can sue and collect damages for wrongful termination.
Following these tips may save you a trip to the courtroom and a lot of headaches. To further reduce your risks, there are experts in the New York and New Jersey area who can help you unfold ways to protect you and your business. If you need to consult an excellent Labor Attorney may we suggest Richard Landau of Jackson Lewis, one of the nation’s premier Employment Law firms. We also suggest you review our brief interview with Richard relating to Wage & Hour Labor Disputes , highlighted in our 90 Second Solutions.