Laying the Groundwork for an Effective Termination
Monday, December 10, 2007
Contributed by: Charles A. Mallard
In my practice I often get calls from employers who are about to terminate an employee in the next few hours. I always find these telephone calls interesting because my clients are asking for an "all clear" at the last moment right before an employee is terminated.
This situation arises from many employers' perception of what "at-will" employment is. Yes, it is true that Texas is an "at-will" employment state, meaning that an employer may terminate an employee at any time without cause. Additionally, an employee is free to quit his job at any time without cause.
Despite these rather clear rules, I always tell my clients that Texas is an "at-will...but" state, meaning that a Texas employer may terminate an employee at any time without cause, unless the employee is disabled, pregnant, entitled to leave under an employment policy, entitled to certain termination rights under their employment contract, or has made a complaint against the employer and is protected by a whistleblower act. In these situations, the employer could face a very real threat of litigation.
I have found that most employers are successful at terminating an employee when they have a history of documenting bad acts and failures of the employee and can show specific reasons why the employer/employee relationship was no longer viable.
These records of an employee's bad acts then can be used to rebut a prima facie case of wrongful termination should a lawsuit ensue. Without a good record explaining the details of an employee's work history, an employer has difficulty proving the exact reason why an employee was terminated. In the absence of such evidence, a plaintiff's prima facie case of wrongful termination can often stand up in court.
Employers are well served by developing a set of guidelines, procedures and job requirements that are clearly explained to their employees and are consistently enforced. Further, employers need to develop a system of documenting employee deficiencies. Developing such a system may be time consuming and costly for an employer, however, the employer's investment will be repaid several times over in reduced litigation costs down the line.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
