Five Things an Employer Should Consider Before Firing an Employee

October 6, 2020
The Law Firm of J.W. Stafford

man holding "you are fired" note

Getting fired isn’t easy. But what many employees don’t realize is that having to fire an employee isn’t easy either. This is especially true when the employer would prefer not to fire the employee, but has a compelling business reason to do so.

Even in situations when an employer might be relieved to terminate an employee, there are still potential issues that the employer should be aware of. This blog post will discuss these possible issues and explain why talking to a Maryland employment lawyer before firing an employee might be a good idea. The lawyers at the Law Firm of J.W. Stafford are ready to take your employee termination questions.

Potential Issue #1: Is the Termination Justified?

Maryland is an at-will state. This means that absent an agreement that states otherwise, an employer can fire an employee for any reason or no reason at all. However, the firing cannot be for an illegal reason or a reason that goes against Maryland public policy.

Despite this at-will employment doctrine in Maryland, an employer should not only have a solid reason for letting an employee go, but have evidence to support that reason. This will be useful if the employee claims the firing is improper.

A word of caution about gathering evidence to support the termination: an employer should not try to create evidence after firing the employee.

In theory, obtaining evidence after the firing shouldn’t be a problem, but it can sometimes become an issue. That’s because it might appear as if the employer is “covering up its tracks” because it fired its employee for an improper reason.

Potential Issue #2: Are There Any Employment Contracts?

Before firing an employee, the employer should make sure there isn’t an agreement that prohibits the firing or outlines a specific procedure that the employer must follow before terminating the employee.

For example, is the employee subject to a collective bargaining agreement or individual employment contract? If so, those contracts might set out certain appeal rights for the employee or that the employee can only be fired for specific types of misconduct.

Potential Issue #3: Will the Firing Come as a Surprise to the Employee?

Surprise firings can occasionally come across as unfair, as it gives the impression that the fired employee was unaware of something they were doing wrong and not allowed to correct it. Several advantages of giving the employee a warning before firing them include:

  • They might be able to fix the unwanted behavior.
  • There is less of a chance that the employee will be angry or try to get revenge against the employer.
  • It provides additional evidence to justify the firing, should the warning not produce positive changes.
  • It’s better for worker morale. If an employer fires an employee without warning, other employees may start to worry that they could be fired without first having an opportunity to fix whatever problem they were responsible for.

Of course, there might be situations where giving a second chance to the employee isn’t necessary. For instance, if an employer fires an employee on the spot after the employee physically assaults a customer, then a warning before firing the employee probably isn’t necessary.

Potential Issue #4: Will the Employee Claim the Firing Is Illegal?

An employer could have a perfectly legal reason for firing an employee, but our Maryland employment lawyer knows that still may not stop the employee from taking legal action. This fear of a lawsuit shouldn’t stop an employer from getting rid of a problem employee. However, it means that the employer must try to anticipate any potential legal claims the employee might make.

For example, is the firing taking place soon after the employee made some sort of complaint to the employer? An otherwise proper termination can appear retaliatory if it occurs soon after the employee filed a complaint.  

Potential Issue #5: Will the Employee Try to Retaliate After Getting Fired?

There may be little the employer can do to stop a sufficiently motivated disgruntled employee. But there are still things the employer can do to minimize damage if it expects retaliation from the employee.

First, the employer should have one or two witnesses present during the firing. It will be good to have at least one witness to corroborate the employer’s account of the firing.

Second, the employer should take steps to prevent the departing employee from having access to the workplace and protected information after getting fired.

Need Help Firing an Employee? Contact Our Maryland Employment Lawyer

If you are a Maryland business that has reservations about firing an employee, think about consulting a Maryland employer defense attorney. An experienced and skilled Maryland employment lawyer, such as one from the Law Firm of J.W. Stafford, can answer any questions you might have and explain what you can do to avoid any unpleasant legal problems that may follow the firing. Call us at 410-514-6099 to discuss your situation.