The Fundamentals of Lawful Employee Termination

Employment is not a permanent thing, even when it is long-term. It is rare that employers will offer a complete guarantee to employees and new hires that they will always have their job, and even then that guarantee can be nullified based on certain circumstances. Sometimes, a person will quit their job and terminate their employment themselves for personal or professional reasons (e.g. a better job). However, employee termination is often carried out by the person's employer. When that happens, it is because there is a justifiable reason behind the decision that does not impinge upon the person's legal rights.

Lawful employee termination is a necessary and common component of the workforce, and it is something that everyone should be able to understand. There are quite a few ways that termination can be used as an abusive tactic in the workforce, and lawful methods and reasons are in place to help prevent those abuses. An understanding of what is and what isn't considered lawful termination can also identify instances and help stop harmful employers. This article will look at what is involved with lawful employee termination, providing information that can be of assistance to both employers and employees. The basics of termination, such as what is considered lawful and some of the more common legitimate reasons for terminating employment, will be discussed in this article. Additional topics will include the importance of the laws associated with employment and employee termination.

What Is Lawful Employee Termination?

Lawful or legal employee termination is when a person's employment is ended in accordance with the employment laws on the national, state, and local levels. This means that the termination does not violate any labor and civil rights laws, and the employer isn't being discriminatory in their reasoning.1 Basically, the person is being fired for a legitimate reason(s) that can be supported with evidence and/or their performance. This means that employers technically cannot fire a person just because they don't like something about them. For example, Sandra's boss can't terminate her employment because her constant bragging about her vacation to Aruba is driving her co-workers crazy. Is it annoying? Yes, but it's not an acceptable reason to fire her. Now if Sandra paid for that Aruba trip using money she embezzled out of the company's accounts, then that's a different matter entirely.

Why Terminate Employees In The First Place?

As mentioned, there needs to be some kind of legitimate and justifiable reason for an employer to terminate someone's employment. This doesn't necessarily mean that those reasons are limited or rare in their occurrence. When termination is presented as an option-and sometimes as an unfortunate necessity-it is usually due to the circumstances of the situation. Some circumstances are not as frequent as others, thus making them a rare or limited occurrence. However, there are some that are noticeably frequent and therefore common. They can include:

• Illegal and Criminal Activities-One of the major reasons given for employee termination is criminal or illegal activities that the employee has committed. This isn't a simple reason, however, as the specific circumstances of the person's crime needs to be included in the decision. Legally, employers cannot discriminate against current and potential employees on the basis of their criminal history.2 A person's criminal history may be brought up as part of a background check, so the information is often something that is disclosed during the hiring process but it still cannot be used for discrimination. Cases of a person's illegal activities while they are employed need to be addressed on a case by case basis, specifically in addressing the nature of the offense.3 Crimes against the company or co-workers and major offenses (e.g. felony) outside of work often are reasonable causes for termination. Minor crimes, or even something as simple as a parking or speeding ticket, usually are not enough for an employer to consider termination. In some cases, an employer may hold off on termination if the accused offense does not interfere with the employee's work or impinges upon the safety of others. Waiting on termination may also be an option until a conviction is made, rather than an arrest; if necessary, temporary leave with or without pay may be an option until a formal decision can be made.4

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• Inappropriate Behavior-Inappropriate behavior could apply to anything that may not be appropriate at work from a professional standpoint. There usually are certain things that should be left at home and are considered unacceptable during working hours. It's a wide range and it's another reason that often requires a closer look at the circumstances. Problems in your personal life can be serious and may impact your job, which some employers may be reasonable about-e.g. death of an immediate family member, medical problems, or an accident. In those cases, it's not necessarily going to be something the employee has control over and there may be some leeway for any non-professional behavior it may cause. Things that happen despite the person's control over their actions and the situation-which may mean that they are fully aware that what they've done is inappropriate-likely will not warrant any leeway and can be grounds for termination. Watching online pornography while at work and/or on a work computer, for example, would constitute inappropriate behavior and a valid reason for lawful employee termination.

• Company Policy Violations-Employees are usually expected to adhere to a fairly extensive set of rules and policies as a condition of their employment with the company. This can encompass anything from ethics policies to codes of conduct, and actively violating or failing to follow these rules can lead to termination.5 These policies are laid out in documents such as employee handbooks, which are issued at the start of the person's employment when they are formally hired and are made available to all employees. The consequences of violating any policy or rule listed there are usually alongside the policy itself, so it shouldn't be a surprise if it happens.

• Poor Work Performance-Employees who exhibit poor work performance tend to be causing harm to the business. This means that they are not doing all of their necessary responsibilities required of them and/or not doing a good job with the work they are doing.6 An employee might start off really well only for their performance to decrease over time with no noticeable effort to improve. It may be possible that there is an underlying cause for this behavior, but an employer may never learn what that cause is. When terminating an employee for poor work performance, it's often a good idea to present clear evidence of their deficiencies and maybe even provide a grace period to allow an attempt at improvement. Provide input, rather than dismissing them and being done with it-it is possible that the person wasn't fully aware of their performance and that information could be valuable regardless if the stay or go.

• Discrimination or Harassment-Any actions that an employee takes that is considered discriminatory or akin to harassment often leads to termination. In some cases, some kind of probationary punishment may be administered to the offending employee before going forward with termination. This is often because there is a legal issue involved, as discrimination and harassment is viewed as illegal under civil rights laws.7 For some employers, it does not matter if the discrimination or harassment is directed at other employees, customers and clients, or random strangers. Even when it is not done during work hours or in the course of their work duties, it is possible that it could impact the person's work and the business (e.g. reputation). Discrimination and harassment is something that many employers are expected to take seriously, so termination is a common outcome for cases.

• Breach of Contract-Depending on the type of employment involved, instances where the employee has breached their part of an employment contract. The contract itself is usually a formal document that both the employee and the employer have signed, and such a document may be amongst the paperwork that new hires fill out at the start of their employment. It's likely that the contract would have information pertaining to the expectations and responsibilities of the employee, as well as the consequences if they do not adhere to those things. In some cases, that may mean termination is a viable consequence for failing to act in accordance with the contract.

• Attendance-Unexplained and frequent absences from work, either with or without notice, can be problematic enough for termination to be an option for employers.8 Attendance issues, like absences, cut into the available time that an employee has to complete their work. This can impact the business itself and any co-workers that the employee collaborates with. It's a noticeable thing, so it's not like an employee could skip out on going to work and their boss will be none the wiser.9 Even frequent tardiness (i.e. being regularly late to work) could also be problematic enough to consider termination. Certain circumstances like severe sickness would be understandable, so an explanation for attendance issues should be sought before firing the employee or administering some other form of punishment.

• Lying-When a person is fired for lying, it usually isn't just a minor or little-white lie. Often, it's something major like saying you have the stomach flu and taking the day off when you're actually using to go to the beach. There may not seem like there's anything wrong-especially if notification of your absence is given in advance-but the lie is still being used in an abusive manner that can have harmful effects if made habitual. Lies can build up to the point where they become problematic for more than just the person who told the original lie. The reasons why they are told in the first place may be as equally harmful, such as if it is to hide a mistake and/or avoid punishment. Terminating someone's employment because of a lie tends to require proof of the lie and its effects-which should be significant enough to warrant concern.

Must A Reason Be Disclosed?

While all of the above listed here are valid reasons for terminating employment, there is some question as to whether or not they need to be disclosed at the moment of termination. Aside from notifying the person that they are being fired, some employers do not give any kind of reason even when asked. It is only in a handful of specific circumstances where that reason legally must be disclosed.10 Such circumstances include the type of employment (e.g. if a contract is involved) and the reason(s) for the termination (e.g. criminal activity). However, that does not mean that an employer can terminate an employee without a reason-especially if they are requested to provide one later on in court, to their superiors in the business, and to the employees future employers. Even if that reason is not disclosed, it still must be there and be a determined factor in the termination.

The Importance of Adhering To The Law

It may be tempting to terminate a person's employment in a less than legal way, but adhering to any and all laws regarding employment and termination is important. The laws are there for valid reasons and are beneficial to both employees and employers. Lawful termination practices are done in accordance with the legal and civil rights of all parties involved to ensure that there are no abuses being committed or unnecessary damage done. For the most part, this provides legal protection for the employer and the employee involved.11 Those involved have their own rights granted to them by law and those rights cannot be muted or dismissed due to circumstances. It's not as if nothing is gained from adhering to those laws when it comes to employee termination. Employers who comply with all employment and labor laws in any action are preserving their business integrity and workplace structure.12 They are also obligated as key components of the economy and the business world to comply with those laws. For employees, that benefit is more so in that their legal rights are being respected and that they are being treated in the situation the way they deserve. In the event that they are not treated that way and are terminated unlawfully, then they have options to act against that mistreatment.