It’s important for employers to remember that while the default employment rule in Texas may be “at-will”, there are some other factors and circumstances that can bear on your decision to move forward with the termination of an employee.
Having a termination check list can be helpful to remind you of any red flags that warrant further consideration before moving forward with a termination decision. Below, is a list of items you will want to consider before terminating someone. This is not an exhaustive list, but includes several key factors to consider. You may also want to consult with counsel on termination decisions.
- Is there any documents (write-ups, warnings, etc..) or other objective evidence (i.e., video of employee theft) to support the termination?
- Are the managers or those who are participating in the termination all in agreement about the grounds for termination?
- Is this termination consistent with what the company has done in the past under similar circumstances or is the person being singled out for different treatment?
- Are there overlapping concerns about workers compensation leave, medical issues, or family leave rights that warrant the consultation with counsel?
- Have internal company policies been followed?
- If your company policy calls for progressive discipline (system of warning and write-ups before termination) have these steps been followed? Is there documentation to support the progressive discipline action taken before termination?
- Does the termination potentially violate any state or federal statutes prohibiting discharge under the present circumstances (i.e., can’t fire someone for filing a workers comp claim, or taking time off to serve on jury)?
- Is anyone making the termination decision based on the person’s protected class (i.e., sex, race, national origin, gender, age, family status, etc..) or because the employee engaged in a protected activity (i.e., notified a state agency of a product liability issue (whistle-blowing), serves on a volunteer fire department, filed a complaint with the Dept. of Fair Employment and Housing, harassment complaint, etc..) – can’t make a termination decision based on these factors.
- Is the termination decision consistent with the performance or conduct of the employee that has been discussed or documented in the past?
- Is the termination decision consistent with previous reviews of the employee (last review was a glowing report two weeks ago and now the person needs to be fired, what changed – is it something legitimate)?
- Has the employee been talked to about the incident? Is there sufficient evidence to reject the employee’s version of events?
- Is there a contract, or were any employment promises made (i.e., how long a position will last) that converts the “at-will” employment relationship into something other than an “at-will” employment relationship? Have any alternatives to termination been considered?
- Is the employee suffering from any disability, medical condition, pregnancy, etc.. (or is employee tending to someone in the employee’s family with a medical condition)? The employer may need to consider an accommodation or other alternative to termination.
Reviewing the checklist above before you decide to terminate someone will help you avoid some common termination pitfalls. Like I said before, this is not an exhaustive list of items to consider, but it is a good starting point. You may want to build on this list, using employment issues you have seen in the past that are particular to your place of employment.