15 Questions to Ask Before Firing Anyone
You may have heard that Arizona is an "at will" state. It is. This means that employees work at "the will" of the employer. Just as employees can keep working or resign if they wish, employers can terminate employees for a good reason or even for no reason.
Employers get in trouble, however, when they fire employees for "bad" reasons. Some bad reasons are obvious. Certainly you cannot fire employees because of their race or their gender or their religion, age disability or color. Some "bad" reasons are less obvious. You cannot fire an employee for making a workman's compensation claim or for complaining to OSHA, the Pest Control Board or the EEOC or other agencies. There are many other "bad" reasons and the courts are recognizing more and more bad reasons all the time.
We recommend that when you choose to terminate any employee that you be very cautious so that you do not open yourself up to a possible wrongful discharge suit. You should never terminate someone in anger, but instead, you should carefully deliberate what you are doing and why. We recommend that you ask and consider the answers to at least these 15 questions:
- How long has the employee worked for you?
- Is the employee in any protected class (age, sex, religion, handicap, etc.)?
- What reason for discharge will be given if a dispute arises
- How strong is the evidence proving that the articulated reason occurred?
- How strong is any documentation of progressive discipline?
- What do the employee's prior performance evaluations say?
- Have you considered the employee's entire personnel record, work history and duration of employment?
- Are there any explanations of sympathies in favor of the employee?
- How have similar situations been handled in the past?
- Does the company have any policy, handbook procedure, memoranda, contract or any other limit concerning this discipline or discharge?
- Did you obtain the employee's explanation about the discharge before making the termination decision?
- Should there be a final warning?
- Should there be a probationary period, suspension, or other sanction instead of termination?
- Would a transfer of the employee or a personal leave of absence alleviate the problem and, if so, is it workable?
- Is the decision maker comfortable with the decision or is there any hesitation about termination? Is it fair?
Ultimately, there is some risk whenever you terminate any employee. As a result, many employers seek legal advice before taking such an action because your lawyer can help you reduce the risk of being sued when you terminate an employee.
Founded in 1984, Jaburg & Wilk offers extensive experience, diversity in practice areas and the ability to think like a business owner. We are an Arizona mid-sized AV rated law firm, the highest rating that a law firm can receive. Our attorneys, paralegals, and other support staff meet our clients' diverse legal needs and provide exceptional service through our 21 Fundamentals which comprise The JW Way.