Can I Fire An Employee For That?
January 17, 2014 | By Vela Wood
A handful of times each month, I field phone calls that go something like this:
POTENTIAL CLIENT #1
Caller: You’re an attorney?
Caller: I own a company and I want to fire an employee for X, Y and/or Z. Can I do that?
POTENTIAL CLIENT #2
Caller: You’re an attorney?
Caller: I worked for a company and got fired for X, Y, and Z. Can they do that?
I know, I know. Nobody is shocked that an attorney is hedging an answer. Trust me, I don’t want to be wishy-washy. I want to tell Potential Client #1 that, “hell, yes, you can fire that so and so for doing that. This is America. That’s nuts.” And (perhaps more often as I’ve grown older and repeatedly amazed at what employers do) I’d like to tell Potential Client #2, “They did what??!! To the Lawsuit Mobile!”
But, instead, I say “maybe.” And then I tell the business owner that Texas has a lot of protections for businesses but you have to be careful under both the state and federal laws. I tell the fired employee that Texas has a lot of protections for businesses but you are protected by some state and federal laws.
Like plenty of other attorneys, I represent both businesses and individuals in employment matters. I know how frustrating it is for an employer to be sued by an employee whom they feel deserved to be fired. And, I know how devastating it is for an employee to be fired for an illegitimate reason. Based on my experience handling these types of cases from both tables in the courtroom, here are my quick, top-5 tips for companies who are about to terminate an employee:
1) Don’t terminate an employee for any of the following reasons:
a) A person’s race, color, religion, gender, age, national origin, disability, or citizenship.
b) Whistleblowing – i.e. bringing suspected wrongdoing to the attention of government authorities.
c) Filing OSHA, FLSA, workers’ compensation, or discrimination claims.
d) Military duty.
e) Jury duty.
f) Exercising voting rights.
g) Engaging in union activity.
h) Refusing to commit a criminal act.
2) Do document all reprimands, warnings, or any type of employee discipline and keep it in a personnel file. Consult this personnel file and make the employee aware of it prior to termination.
3) Do take your performance evaluations seriously. If you’re rating employees on scales, for example 1 to 5 in certain areas, then don’t blindly give all 5s unless warranted. Firing an employee who receives boilerplate “Excellents” in all areas for the seven years prior to his or her termination for being an unproductive employee looks bad and raises suspicion in subsequent litigation.
4) Don’t try to fabricate what you think is a “legitimate” reason for the termination. Remember, you can terminate an at-will employee for almost any reason other than those outlined above. Trumping up flimsy reasons is hard to defend later on and makes judges, juries, attorneys, and the employee suspicious about the true reason for the termination.
5) Use common sense and be a good person. Don’t discriminate. Be fair. Give employees the benefit of the doubt. Times are tough out there. If you take all of these into consideration and still have to terminate an employee, then, trust me, the fact that you were a good person and fair will shine through.
Generally speaking, the unlawful termination odds in Texas are stacked against employees. But, that doesn’t mean there aren’t employers who fire first and ask the wrong questions later. If you follow these five tips, I cannot promise that you will not be sued. But, I can promise that you’ll make your attorney’s job easier if a lawsuit is filed. And that could lead to more certainty than my rote “maybe.”