Employment at Will
Yesterday I mentioned employment at will in this post about police officers who were fired for assaulting a handcuffed man and who successfully sued for wrongful termination.
Via George's Employment Blawg comes this article on employment at will and things a small business should consider to reduce the possibility that fired employees will sue:
Here's where things get tricky. In between employment at will and the law is a whole mess of claims, counterclaims, lawsuits, disputations and confusion. It's enough to make anybody scratch their head.
We have had several instances where employees have threatened legal action over termination. I have observed at least three reasons for this:
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Employees sometimes have a skewed view of the termination process, thinking that a company must hold to some kind of courtroom "beyond a reasonable doubt" standard in amassing reasons for termination.
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The most inept employees never seem to know that they are inept
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Some employees are far more adept at working the system than they are at their jobs.
We do several things to help make things go smoother:
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Unless the violation was outrageous, where we fire on the spot, we try to give employees written warnings and coaching before they get terminated
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Every new employee signs a 60/90 day probationary period letter. If there are problems, they almost always occur in the probation period -- ie they turn up quickly -- and the probationary period gives us more leeway to quickly terminate. Update: This article says why this policy can be a mistake, or at least you have to be careful with it. This is less of a problem for us since most of our employees only work a 5 month season anyway.
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We don't give references. I have said that this makes me feel guilty, but negative references about fired employees are a big source of litigation, and frankly, I am sorry to admit, the treat of wrongful termination suit is greatly reduced if the ex-employee finds a good job somewhere else. Kind of the business version of hot potato.
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Being a seasonal business saves us. For many employee problems, we limp along until the end of the season when we can terminate the person for lack of work, then we make sure not to rehire them in the spring.
Update: Via Overlawyered, this story in the New York Post (gotta love the headlines) about a teacher fired 17 years ago and still filing suits:
But the Clifton, N.J., instructor never got over it. Instead, he has filed 15 lawsuits in Manhattan federal court and three others in Brooklyn and New Jersey courts, seeking reinstatement and millions of dollars in damages.
Each lawsuit has been tossed out as meritless. But a defiant Malley hasn't gotten the message or doesn't care.
