In General
Should I quit if I think I am about to be fired?
In general, this is not a good idea. Many states deny unemployment benefits to employees who resign their position. Further, it is also often easier to find another job when you are working than when you are unemployed.
Does the company have to grant me severance pay?
There is no legal obligation to provide severance pay to an employee who has been laid off or fired. However, an employer can create a severance obligation if it has paid severance in the past to employees in similar positions or the company's handbook states that the company pays severance.
Do I have to be warned by the company prior to them letting me go?
In most cases the answer is no. If your company has a progressive discipline procedure or corrective action procedure, it may require that certain steps be followed prior to a termination. Many companies provide for a performance improvement plan before an employee is released. However, in almost all of these policies there is a provision that states in cases of "just cause" an employee may be let go immediately.
My company has offered to pay me severance if I waive my right to sue them. Can they do this?
A company can do this, but the courts look to ensure that the employee has received adequate consideration for the release. This means that the company has to give you more than what they give other employees who do not waive their rights.
For employers who wish to secure such a release it is necessary to show the following:
- The release was secured voluntarily.
- It is written in easily understood language.
- The employee was encouraged to consult an attorney before signing it.
- Adequate consideration was provided.
- The employee was given an opportunity to negotiate the terms.
- Enough time was given for the employee to think about signing (The Age Discrimination in Employment Act requires 21 days).
- The employee was given the ability to repudiate (usually 7 days).
I have an employee who I need to let go. What factors should I keep in mind in deciding whether to terminate?
Prior to any termination, you should ask yourself the following questions:
- Did the employee have notice of the requirements of the job or the policies and procedures?
- Have the policies been applied consistently?
- Was the employee warned that his actions could lead to termination?
- Did you listen to the employee's position?
- Were there any extenuating circumstances?
- Have others who performed similarly been let go?
- Have you checked to ensure that no discriminatory issues exist or that the employee did not engage in protected activity?
- Have you documented your case?
What is "wrongful discharge"?
Wrongful discharge is an exception to the employment at-will rule. It occurs when the employee is fired for violating a public policy, such as whistle-blowing or refusing to do something illegal. It may also occur where the employer violates the employment contract.