Tips for managing discharge risks

Employment decisions can be difficult. Which applicant do we hire? Should we grant this employee’s request for leave? What type of discipline do we impose on a particular worker? Each decision carries varying degrees of risk. One of the riskiest decisions you'll face will be whether to discharge a particular employee. Before making the decision, and to limit some of the potential risk, here are some important issues to consider and discuss with the termination decisionmakers in your organization.

Have a good reason

While many employees are considered to be “at-will employees” (meaning they can be fired for any reason as long as it isn’t illegal or improper), you'll want to make sure you have a good reason to justify any discharge decision. You shouldn’t rely on the at-will employment doctrine to support your decision.

In other words, if an employee sues you over a discharge, you don’t want to defend the decision by telling the jury you had the right to fire the individual for any reason. Juries will want to hear a proper and fair reason to justify the dismissal.

As a result, when you discharge an employee, you should be able to articulate a legitimate, nondiscriminatory, and nonretaliatory reason. Stating the reason will not only assist your counsel in defending the company but also act as a “check” on your decision.