·  Legal News, Analysis, & Commentary


Avoiding Legal Issues When Terminating Employees

— September 3, 2021

Employers who take appropriate measures to prevent discrimination throughout the recruiting process can lawfully dismiss their employees.

Considering that most employment is on a “take it or leave it” basis, companies are generally allowed to dismiss an employee at any time, even if not legal. However, depending on the circumstances, a lawful termination may appear to be illegal at times.

For example, if you dismiss an employee two days after he complains of discrimination, it may look as though you are punishing him for filing the complaint in the first place. Even though you have valid performance-based reasons for dismissing the employee. However, you may face difficulty defending yourself in a lawsuit against the company unless you can back up your claims with evidence.

Fortunately, employers can reduce the likelihood of facing a lawsuit by answering straightforward questions before terminating an employee.

Dismissing workers who are members of protected classes, workers who have filed complaints, take paid leave, or have not been appropriately paid can be a risk factor. The advice of a lawyer will help assess the issue and determine the right plan of action. San Jose Business lawyer provides support for small businesses and individuals.

Have You Followed All of Your Company’s Policies?

When it comes to dismissing an employee, one of the essential steps you can take is ensuring that you have followed all of the company’s personnel rules constantly and consistently. That means you have not neglected any processes or procedures, and have implemented your rules in the same way towards all of your workers.

Follow the rules & regulations mentioned in the employee handbook about the employee’s present state. For instance, if you wish to dismiss an employee for excessive absences, examine your employee handbook’s attendance policy. Does the employee have an excessive number of unexcused absences? Is it possible that the employee did not follow the appropriate procedures while calling in sick? Is it specified in the handbook when insufficient attendance is a ground for dismissal?

Your handbook may include a disciplinary policy, which implies that an employee may face more disciplinary consequences for each subsequent infraction. The handbook may indicate that employers are not obligated by the process and can skip certain steps based on the severity of the violation. However, if your formal disciplinary policy does not reserve this right, you should ensure that all necessary disciplinary procedures have been taken. Even if you are not obliged to follow your formal disciplinary policy, doing so can help reduce the chance of an employee filing a lawsuit alleging unfair treatment.

Another essential factor to consider is whether you have already granted exceptions to other workers in the past. For example, did you impose milder disciplinary measures, including a written warning or suspension, to an employee who had committed the same violation earlier in the fiscal year? If later, you have dismissed a new employee for the same reason, you may find yourself the victim of a lawsuit from the terminated employee. For instance, you could face a discrimination lawsuit from an employee alleging that you treated her more harshly than a male employee due to her gender.

Have You Documented Every Performance Issue?

One of the most effective ways to reduce the legal problem is to ensure that the decision’s justifications are fully recorded in the employee’s personnel file. For example, if there was a particular event, including a safety issue or gross misconduct, in that case, each individual who was engaged in the occurrence, and if there are any witnesses, all should be questioned and, if necessary, requested to provide written statements about their experiences and observations. In addition, make sure you provide the employee written notices for any additional disciplinary problems and have the employee sign the notices to indicate that they have received the paper.

Man and woman in a meeting; image by Charles, via
Image by Charles, via

Furthermore, all proof of performance issues should be preserved, including customer complaints, time card records, production records (for manufacturing workers), and call logs, among other factors. Keep any surveillance or video recordings that you may have. If possible, take photographs of the area to protect yourself. In case, the employee brings a lawsuit against you, you will need to provide these papers to demonstrate that you had a legitimate ground to terminate the person.

Is the Employee a Member of a Protected Class?

According to federal law, dismissing an employee based on race, gender, national origin, religion, pregnancy, ethnicity, or age is unlawful. Additional categories, like sexuality or marital status, might also be protected under state laws. If workers are confused or puzzled by their terminations, sometimes they file lawsuits alleging that they were the victims of discrimination. For workers who are members of minorities, women, pregnant, or over the age of 40 in particular, it is necessary to ensure that they are not treated any differently than other employees in the organization.

Have you Compensated the Employee Appropriately?

Before dismissing an employee, review the payroll records to make sure that the employee has been appropriately compensated for all of their working hours. If you fail to compensate an employee for working over 40 hours in a week, the employee can decide to sue you for unpaid wages. Regardless of the cause for the termination, the employee shall be entitled to the wages owed to him or her.

The minimum wage, overtime pay, lunchtimes, and rest breaks are governed by state laws, which vary from one state to another. Many states also have regulations governing what may be taken from an employee’s last salary, when the final payment must be delivered, and other aspects of employment.


If any of the circumstances listed above apply to you, you should speak with a lawyer before taking any action. They can help you with appropriate suggestions and ways to avoid or get away from certain situations.

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