Robin is habitually late both mornings and after lunch. Seth cannot get a copy job right, routinely getting pages out of order or upside-down. Barbara always grumbles underneath her breath and slams paperwork on her manager’s desk. No one likes to be teamed with her. Robert plays practical jokes—people get upset and office moral is slacking.
Everyone knows that such employees hurt production, lessen employee morale, and cost money. So, you ask, why can’t their boss just fire them? After all, this is an “at will” state, right?
Understanding “At Will” Employment: “At Will” employment means that the employer/employee relationship exists at the “will” (desire, choice) of the parties. If the employer wants to end it, the employee gets fired. If the employee wants to leave, he or she can quit. Employment at will can be ended at any time for any reason, without cause or notice. . .except that it cannot be ended for an illegal reason, such as a discriminatory or retaliatory reason.
Poor Performance Termination: Most would agree that being late, delivering unsatisfactory products, and being negative or disruptive at work are non-discriminatory reasons for termination. But, merely saying it is so may not be enough.
Tolerance: If the employer tolerates improper behavior (lateness, sub-par products, disruption etc.) generally, but terminates only the one that finally “gets to him,” was it really that performance that motivated the termination?
Policy: If the employer never issues policy establishing guidelines and expectations, how are employees to know what is expected?
Notice: If the employee is not told he or she is violating policy or expectations, never given a performance review, and not given a chance to improve, but is just fired, the employee can claim the reason was invented and the real reason must be . . . discrimination and/or retaliation.
Discrimination Claims: The employer claims the employee was at will and no reason for termination was needed, but, p.s., the employer has a reason—chronic absenteeism. The employee counters with: no one is present consistently; there is no attendance policy; the employer never said my attendance was a problem; this is made up after-the-fact to justify a discriminatory termination.
To defeat a discriminatory discharge claim employers should have documentation of company policy, its consistent application, its application to this employee, and the employee’s failure to improve despite warnings. No documentation? Insufficient documentation? Do not be so quick to pull the poor-performance termination trigger.
Get help: Get guidance regarding employee discipline and discharge issues from the start from an employment lawyer who represents employers. They address all aspects of having employees and can help you attempt to avoid expensive legal problems down the road.
