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Reducing the Risk of Wrongful Termination

Before firing an employee, employers should analyze the potential for a lawsuit or administrative claim

Sharon S. Moyer  

A common belief among many employers is that, because Arizona is an at-will employment state (i.e., in the absence of a contract, either party can break the relationship without cause), they can fire an employee without justification.

That is a risky position to take; in many cases, if you cannot articulate a good reason for the termination, you may face a wrongful termination lawsuit or administrative claim.

Thus, before firing an employee, employers would be wise to analyze whether a jury would agree that the termination was justified. To limit potential exposure of employee damages stemming from wrongful termination, you should first consider the following factors:

  • How long has the employee been with your company or organization?

  • Is there an employment contract? If there is, what does it say?

  • Can you articulate the reasons for termination?

  • Are the grounds for termination consistent with the provisions of your employee manual or employment policies?

  • Has the policy manual been changed recently?

  • Do you have evidence to support your decision?

  • Have you documented the events or employee conduct that led to your decision?

  • Did you ask the employee for an explanation?

  • Is the decision consistent with prior performance evaluations?

  • Are there circumstances in the employee’s life that make the termination decision inappropriate?

  • How have you responded to similar conduct by other employees?

  • Is your action regarding this employee consistent with actions taken against employees in similar situations?

  • Has the employee made allegations of company wrongdoing?

  • Is the employee a member of a protected category?

  • Does the employee have a serious health condition or a disability?

  • Is the employee properly classified as salaried (versus hourly wage)?

  • Is the employee’s cooperation necessary to the defense of claims in pending or threatened litigation by others?

  • Have you considered alternatives to termination (e.g., resignation, transfer, demotion, final warning, suspension)?

  • In general, would the termination be viewed as fair by a third party who knew both sides of the issue?

A detailed analysis of these factors should assist in reducing liability or in assessing the risk of a lawsuit or administrative claim resulting from an employee termination.