General Practice, Solo & Small Firm DivisionMagazine
Volume 15, Number 3
Employment Termination Checklist
The common law view of "at-will" employment has been that an employee-at-will may be terminated at any time, for any reason or for no reason, with or without notice. But court decisions in many states have eroded this doctrinaire view, and federal and state statutes have created exceptions and protections unknown at common law.
Employment law specialist Shawn D. Wallace, chair of the Section’s Labor and Employment Law Committee, offers this employment termination checklist. It emphasizes for the benefit of employers and employees alike the many potential exceptions to employment-at-will.
1. Is there a written employment agreement? Have oral promises been made? Has the employee given up any rights/interests in order to obtain the job?
2. Is there an employee handbook or written personnel policy? If so, (a) Does the handbook/policy contain a conspicuous statement that it does not create a contract? (b) Does the handbook/policy mandate standards of conduct for the employer? and (c) Does the handbook/policy require notice or allow grievance prior to discharge or discipline?
3. Could the employer’s action be considered race, color, or national origin discrimination?
4. Could the employer’s action be considered gender discrimination?
5. Could the employer’s action be considered discrimination based on religion?
6. Could the employer’s action be considered discrimination based on the employee’s age (40 or older)?
7. Could the employer’s action constitute discrimination based on disability? Has the employer denied a request to make reasonable accommodation for an employee’s disability?
8. Does the employer’s action constitute retaliation against an employee?
9. Has the employer required the employee to engage in conduct that would violate the law or public policy or would termination violate established public policy?
10. Is the employee a "whistleblower"?
11. Has the employee complained of a "hostile environment" or harassment?
12. Has the employee assisted others in claims against the employer?
13. Does the employer’s action arise from a "plant shutdown"?
14. Is the employee otherwise protected (e.g., union member, user of tobacco products, veteran, participant in job training program)?
15. Does the employer have in effect a policy regarding confidentiality? References?
Shawn D. Wallace is a partner with Young, Clement, Rivers & Tisdale, LLP, Charleston, South Carolina.