How NOT firing employees can get you into legal trouble

Nobody likes firing people. But sometimes, the gyrations managers go through just to avoid the uncomfortable termination confrontation can jump back and bite you.
The legal reasons for not firing employees are pretty clear. A partial list:

  • discrimination
  • retaliation
  • refusing to take a lie detector test
  • alien status (an employee can be an alien and still legally eligible to work)
  • filing a formal complaint with a federal agency, and
  • violations of public policy (things like whistleblowing, refusing to do something illegal on behalf of the company, or exercising rights like taking medical leave).

The four deadly sins

Those are the easy calls. But there are other, less overt, firing mistakes companies commonly make. A selection:

  • Not firing bad employees. Sure, everybody knows that keeping marginal people around holds back productivity, and it certainly doesn’t help morale.
    But there aren’t any legal ramifications, right?
    Wrong. If a company allows a sub-par performer to stay on the job for an extended period of time, it’s possible the employer will set a “customary practice” precedent.
    And some judges have ruled such customary practice is an implied contract – meaning the employer officially recognizes that poor performance is acceptable.
  • Making an employee so miserable that he or she eventually quits. Instead of firing the person, a manager sets out to make his or her job unbearable.
    This is an incredibly risky way to get rid of a problem employee – often riskier than an outright firing.
    “Constructive discharge” – the practice of putting an employee in a spot where he or she has no rational choice but to quit – is the basis of many a successful retaliation charge.
  • Asking an employee to resign. This sometimes seems the humane way to go, but it can lead to serious problems down the road.
    For instance: Handling reference requests on the departed employee, especially if the employee has indicated a potential to be violent or disruptive.
  • Relying on a probationary period as blanket protection for firing. The idea of probationary periods began in union and government operations.
    Originally, it was a guarantee that the new employee couldn’t file a grievance if they were let go before the end of probation.
    Private sector firms adopted the practice, many assuming it was a “safety valve” to allow them to shed new hires that didn’t work out.
    But legally, it just doesn’t work that way. Probationary employees have exactly the same legal protections their longer-tenured colleagues enjoy.
    And if their termination doesn’t conform with the law, they can bring suit just like everybody else.