Twelve Steps to Remember When Termination is the Only Option
Gabrielle L. Caruso
Many employers have shared with me their thoughts and opinions about employment law over the last 26 years that I have been engaged in the practice of law. It seems as though I hear a lot of the same things over and over again. One of those is: “I can fire my employees at any time and for any reason because Utah is an at-will state.” Another variation of this is, “Utah is a right to work state. Employees have no right to keep a job.” Each statement is a misconception and can get an employer into trouble.
Although the general rule in Utah is that employees serve at the will of the employer and can be terminated at any time, with or without cause, there are many exceptions to this rule. And the way the exceptions arise is quite frightening! For example, an employer can make a promise not to terminate an employee except for just cause, and not even know that he has made such a promise!!! Other employers have created handbooks with provisions which turn their ‘at will’ employees into ‘just cause’ employees, thus prohibiting the employers from firing ‘at will’. The effect of this can be devastating, especially to the small employer. Why? If you have promised an employee that he can be terminated only for ‘just cause’, and the employee does not believe that you had ‘just cause’ to terminate him, he can institute litigation and you can spend thousands of dollars in attorney fees attempting to prove that the reason you fired him was a good reason. Accordingly, even though Utah is generally an “at will” state, many employers are not ‘at will’ employers and can not terminate an employee ‘at will’, but only for cause.
Next, the fact that Utah is a ‘right to work’ state has nothing to do with an employer’s right to terminate an employee. The ‘right to work’ law enacted by the Utah legislature merely allows an employee to choose whether he wants his dues deducted from his paycheck. Union dues? Paycheck? Where’s the connection with termination of employment? There isn’t any. How does this law make it easier to terminate an employee? It doesn’t.
Another reason why these ill conceived opinions can get you into trouble, is that even if an employer may terminate his employee ‘at will’, the employer can not terminate an employee for a discriminatory reason. In other words, each employer in Utah who has 15 or more employees and who is otherwise subject to the federal and state discrimination laws, must take care to ensure that an employee is not terminated because of a protected status such as race, national origin, religion, sex, age, disability, veteran status, etc.
What can an employer do to make sure that she is not violating discrimination laws and what can she do to make sure that she is not a ‘just cause” employer? The following is a list of the top ten things employers should do if they are in the unenviable position of having to terminate an employee:
1. Determine if you are an “at will” employer or a “just cause” employer. Your policies and actions will determine what type of employer you are. If you are confused, seek legal advice.
2. Thoroughly investigate and document the reasons for termination.
3. If you are a ‘just cause’ employer, make sure that you have ‘just cause’ to terminate. And regardless of whether you are an ‘at will’ or ‘just cause’ employer, make sure that you follow all of your policies, especially those that require progressive discipline, probation, or some other type of procedure prior to termination.
4. If the problem is poor work performance, have given your employee notice of deficiencies and an opportunity to correct them? Even though the law may not require you to give notice, it shows to others that you have tried to help the employee and that you are fair.
5. Document the problems that you have had with the employee as well as the attempts that you have made to warn the employee and/or help him improve his performance.
6. Determine whether you have disciplined other employees for the same or similar offense. Keep the discipline consistent in order to avoid claims of discrimination.
8. Two is better than one. It’s always better to have two management employees in the room when you are terminating an employee.
9. Give the employee the reasons for termination, but limit the discussion.
10. Act professionally. Treating the employee with dignity goes a long way.
Gabrielle “Lee” Caruso, an attorney with the law firm of VanCott, Bagley, Cornwall & McCarthy, has been assisting clients with labor and employment matters for over twenty-seven years. She can be reached in VanCott’s Park City office at 435-649-3889 or at gcaruso@vancott.com.
Although the general rule in Utah is that employees serve at the will of the employer and can be terminated at any time, with or without cause, there are many exceptions to this rule. And the way the exceptions arise is quite frightening! For example, an employer can make a promise not to terminate an employee except for just cause, and not even know that he has made such a promise!!! Other employers have created handbooks with provisions which turn their ‘at will’ employees into ‘just cause’ employees, thus prohibiting the employers from firing ‘at will’. The effect of this can be devastating, especially to the small employer. Why? If you have promised an employee that he can be terminated only for ‘just cause’, and the employee does not believe that you had ‘just cause’ to terminate him, he can institute litigation and you can spend thousands of dollars in attorney fees attempting to prove that the reason you fired him was a good reason. Accordingly, even though Utah is generally an “at will” state, many employers are not ‘at will’ employers and can not terminate an employee ‘at will’, but only for cause.
Next, the fact that Utah is a ‘right to work’ state has nothing to do with an employer’s right to terminate an employee. The ‘right to work’ law enacted by the Utah legislature merely allows an employee to choose whether he wants his dues deducted from his paycheck. Union dues? Paycheck? Where’s the connection with termination of employment? There isn’t any. How does this law make it easier to terminate an employee? It doesn’t.
Another reason why these ill conceived opinions can get you into trouble, is that even if an employer may terminate his employee ‘at will’, the employer can not terminate an employee for a discriminatory reason. In other words, each employer in Utah who has 15 or more employees and who is otherwise subject to the federal and state discrimination laws, must take care to ensure that an employee is not terminated because of a protected status such as race, national origin, religion, sex, age, disability, veteran status, etc.
What can an employer do to make sure that she is not violating discrimination laws and what can she do to make sure that she is not a ‘just cause” employer? The following is a list of the top ten things employers should do if they are in the unenviable position of having to terminate an employee:
1. Determine if you are an “at will” employer or a “just cause” employer. Your policies and actions will determine what type of employer you are. If you are confused, seek legal advice.
2. Thoroughly investigate and document the reasons for termination.
3. If you are a ‘just cause’ employer, make sure that you have ‘just cause’ to terminate. And regardless of whether you are an ‘at will’ or ‘just cause’ employer, make sure that you follow all of your policies, especially those that require progressive discipline, probation, or some other type of procedure prior to termination.
4. If the problem is poor work performance, have given your employee notice of deficiencies and an opportunity to correct them? Even though the law may not require you to give notice, it shows to others that you have tried to help the employee and that you are fair.
5. Document the problems that you have had with the employee as well as the attempts that you have made to warn the employee and/or help him improve his performance.
6. Determine whether you have disciplined other employees for the same or similar offense. Keep the discipline consistent in order to avoid claims of discrimination.
- Check the age, sex, race, national origin, disability, and religious status of employees previously terminated. Is there a red flag?
- Do your termination policies disparately impact protected groups?
- Prior evaluations. Beware of terminating the ‘perfect’ employee. If you terminate an employee for poor work performance but have not been honest in a prior evaluation, your actions appear inconsistent.
- Termination for excessive absences. Is your company required to comply with the Family Medical Leave Act? Have you complied?
8. Two is better than one. It’s always better to have two management employees in the room when you are terminating an employee.
9. Give the employee the reasons for termination, but limit the discussion.
10. Act professionally. Treating the employee with dignity goes a long way.
Gabrielle “Lee” Caruso, an attorney with the law firm of VanCott, Bagley, Cornwall & McCarthy, has been assisting clients with labor and employment matters for over twenty-seven years. She can be reached in VanCott’s Park City office at 435-649-3889 or at gcaruso@vancott.com.
Copyright 2006. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.