Strategies for Avoiding Wrongful Termination Claims
The Law Firm of J.W. Stafford | October 21, 2020
Termination of a struggling employee is something that many employers struggle with. As the employer-employee relationship deteriorates, they begin to worry that terminating the employee will result in costly and time-consuming litigation. While there is no guarantee that you won’t get sued, there are steps that you can take to protect yourself and minimize potential claims. If you are struggling with this issue, a Maryland employment attorney can help you develop sound termination procedures as well as provide guidance in particular situations.
Termination and Employment at Will
Maryland is an “employment at will” state, meaning that employers can terminate an employee for almost any reason. However, this does not mean that you do not face the risk of a wrongful termination lawsuit – there are some very important exceptions to the employment at will rule that you need to keep in mind:
- Employment at will only applies if there is no written contract or agreement that sets forth the grounds for termination.
- You cannot terminate an employee for engaging in activities that are protected by law such as whistle-blowing.
- You cannot terminate an employee for filing a workers’ compensation claim.
- You cannot terminate an employee for demanding payment of overtime or other wages they are entitled to.
- You cannot terminate an employee for reasons related to their age, gender, religion, marital status, national origin, or disability.
Most employers do not terminate employees for the reasons listed above. However, you do need to be mindful of appearances and proceed very carefully if you think the employee could claim that they were wrongfully terminated.
One of the best ways to prevent costly wrongful termination claims is to carefully document the performance of all of your employees. Many employers make the mistake of documenting the performance only of those employees who are underperforming, which won’t protect you against claims. Schedule regular performance reviews where you provide candid feedback as to their performance and provide written reviews.
For those employees who are underperforming, you want to be sure that you provide as much detail as possible about how they are underperforming, actions that you have taken, and what expectations you have communicated to them for avoiding termination.
Follow Your Employment Policies
Hopefully, you have an employee handbook that lays out your expectations for your employees and explains your termination protocols. Unfortunately, many of these handbooks sit on a shelf gathering dust, and employers forget about them. As a result, they wind up terminating an employee but neglect to follow the procedures laid out in the manual. As you might imagine, this can quickly open you up to a wrongful termination claim.
You should routinely review your termination policy and make sure your managers follow it closely. If you decide to update your policy, the changes should be communicated and carefully implemented. Make sure that every employee receives a copy of the new termination policy.
Provide Advance Warning
Hopefully, your termination policy lays out what notices will be provided. As mentioned above, you should provide the notices that are required by your policy. That said, you may want to consider a couple of weeks’ notice of their termination – this gives them the opportunity to find another job and perhaps make a more graceful departure.
That said, we understand that the situation may be delicate and you may not want to have a terminated employee coming into work for the next two weeks. In that case, you may want to consider immediate termination, but provide them with severance pay.
Speak with Others
Deciding to terminate an employee is a big decision and shouldn’t be the responsibility of a single person. Prior to making any negative decisions pertaining to their employment (including, for example, putting the employee on probation), you should check your decision with whoever else may be appropriate. For example, your HR director should consult with you and the employee’s immediate supervisor to make sure that termination is the right decision. Furthermore, you should engage others in the termination process as early as possible to avoid the perception that the termination is purely personal.
In addition, you may also want to consider consulting with your attorney. An experienced Maryland employment attorney can provide you with a valuable perspective and make sure that the termination complies with your termination policy and any applicable laws or regulations.
Contact a Maryland Employment Attorney Today
The Law Firm of J.W. Stafford helps employers across Maryland build stronger businesses and avoid costly litigation. Whether developing a comprehensive termination policy or helping navigate a difficult situation with an employee, we have the knowledge and experience you need. To schedule an appointment to discuss your needs, contact us at 410-514-6099 today.