“I want to fire him, but I can’t.” It’s true that some employees are “fire-retardant”— they are in a protected class or have performed a protected act — but this doesn’t mean you can’t fire them.
However, you do want to slow down and be sure that you aren’t discriminating or retaliating against them for asserting their legal rights. And, you have to be sure that you won’t be giving the appearance of discrimination or retaliation.
For example, you may have a good reason to terminate an employee, but if you do it the day after the employee makes a complaint to EEOC or FEHA, the appearance of retaliation is going to be hard to explain.
Here are the top five most problematic areas faced by employers:
- Members of a protected class
- Employees who’ve complained or filed some sort of claim, including corporate whistleblowers
- Employees on medical, military, or other protected leave
- Employees who have contractual employment rights
- Employees who have asserted a public policy claim
Attorney’s Fees: A Costly Lawsuit-Related Risk To Avoid
Federal law prohibits employment discrimination based on race, religion, national origin, sex, pregnancy, age, disability, citizenship, and military service. In addition, California prohibits discrimination on additional grounds, including marital status and sexual orientation. And some municipalities have an even longer list — Santa Cruz, for example, prohibits bias on the basis of weight.
Employees who wish to file discrimination charges must begin with a charge filed with either the EEOC or FEHA. Each one of these charges requires the employer to file lengthy response with supporting documentation, handbooks, policies, past and present employee names, addresses, and pertinent employment information of other terminated or disciplined employees during a specified period of time.
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If the matter is not resolved at the agency level, the employee has the option to bring an action in court.
Perhaps the biggest liability in discrimination cases is the attorney’s fees provision. Not only must you pay your own attorney’s fees, but if the employee prevails, you are responsible for his or her fees and costs as well, in addition to any back pay, benefits, front pay, compensatory damages, and interest.
Attorney’s fees alone may dwarf the damages recovered by an employee. Plus, depending on the facts, you may also be subject to liquidated or punitive damages.
When Congress established the discrimination laws, they wanted to be certain that even minimum-wage employees would be able to take on large companies.
Dealing with “Fire-Retardant” Employees
Here are 3 tips for reducing your lawsuit risks if you’re looking to fire a “fire-retardant” employee:
1. Keep your distance. Timewise, that is. Unless the employee does something that warrants immediate, no-questions-asked termination, like brandishing a gun on the shop floor, try to put some distance between the protected activity and the termination.
2. Keep meticulous records. The employee’s cries of “foul!” won’t get much traction if you maintain detailed, timely records showing his or her various performance-related deficiencies, as well as the appropriate counseling and feedback you’ve given the employee along the way to try to get him or her back on track.
3. Look to similarly situated employees. Terminating, say, a pregnant employee for a minor theft looks bad — but not if you can show that you’ve terminated other non-pregnant employees for comparable transgressions.
Keeping Your Nose Clean
Of course, the absolute best way to stay out of court is to always stay on top of your recordkeeping, your disciplinary procedures, and your compliance with the applicable state and federal laws.
Yeah, right, you may be thinking. Have you seen the sort of fires I’m putting out on a daily basis?
It’s true that HR requires an enormous amount of plate-spinning — particularly in California, where the state laws almost always require more of employers than their federal counterparts do.
But there’s an easy, one-stop solution for getting all the practical advice and info you need to not only survive in HR, but thrive: CELU 2011.
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In just two days (or three, if you join us for our in-depth pre-conference workshops), you’ll learn how to protect your organization from lawsuits and penalties and how to create effective, legally sound workplace policies.
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Click here for all the details and registration info. If you have any questions about the event, please feel free to email me directly at jcarsen@employeradvice.com. We hope to see you in Berkeley this fall!
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Particularly in California, many (if not most) employees are “fire-retardant” for one reason or another…tread with extreme caution.
Particularly in California, many (if not most) employees are “fire-retardant” for one reason or another…tread with extreme caution.