Federal law does not require employers to provide terminated employees with a written explanation for their discharge. However, many states have litigation in place that calls for an employer to provide documentation outlining the reason for termination. This is a called a service letter, and some state laws decree that you give this to the employee immediately upon termination while others only require a service letter to be issued upon an employee’s request.
Regardless of state law, it is usually a good idea to let an employee know why they are being terminated and to keep a record of this information. When conducting a termination, you should honestly state the reason for discharge. The explanation should be factual and brief. In some cases, an employer’s failure to state the true reason for the termination or stating reasons inconsistently has been considered evidence of bad faith or discrimination.
Don’t try to avoid difficult discharge decisions by classifying the discharge as a “layoff.” Calling a discharge a layoff can be dangerous if a true layoff did not occur as the error may be enough for a reasonable juror to determine the employer’s reason is a pretext for discrimination.
Avoid giving defamatory or derogatory reasons for termination. This means you should be sure to not communicate a statement to the employee that may injure his or her reputation, especially if the statement may not be factual. A defamation claim typically is comprised of the following:
An ex-employee may bring a defamation claim if an employer gives information to prospective employers without a release. However, employers should also be aware that a subsequent employer could possibly sue the former employer for negligent referral if the employee commits the same type of wrongful conduct she or he committed at the previous job. Careful consideration should be given to any communication regarding the reason for the termination.
Memo for Unflattering Social Media Content
A PR statement employers may want to save for a rainy day.
FOR IMMEDIATE RELEASE
Date: TBD (embargo until needed)
Contact: Corporate Communications Director
Our company is an equal opportunity employer, and we take pride in our diversity. Toda...
4 Tips to Protect Trade Secrets and Confidential Information When Terminating Employee
Employers may face risks of departing employees, particularly involuntarily terminated employees, taking the employer’s confidential information or trade secrets with them when they leave. Putting aside the...
RIFs Are Not the Easy Solution for Problem Employees
Some employers view a reduction in force as an apparently easy and clean way to get rid of employees they do not want – like poor performers, who have not been properly performance-managed. There may even be less appropriate considerations ...
Common Pitfalls for Emerging Companies
Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, th...
The DOs and DON’Ts of Written Warnings: What Employers Need to Know
Ursula A. Kienbaum
Employers frequently use written warnings as part of their formal progressive discipline policies. How and when to use these warnings can sometimes be tricky. Below are answers to some frequently asked qu...
It happens in almost every workplace almost every day: somebody swears or is on an iffy website or is carrying a knife (or worse) or is using their own (not secure) phone or computer to send off a quick business email or text.
So what is illegal, what is inappropriate and what is just not that...
Just like a dog, a hire can be bad for a multitude of reasons, including the hirer (trainer), the hired (dog), everyone's expectations (in both cases some praise and/or a treat), and the environment (workplace/home).
HR Dive is here to help (with the bad hire*):
"Sooner or later, even the m...
Both of the following blogs were written by Ed Harold at Fisher Phillips, which authors several of our resources. Both are included in their entirety below. You can find the originals, Part One and Part Two, and their Retail Industry Update on their website.
A Step-By-Step Guide To Term...
SHRM, with help from author Ogletree Deakins, explains the process of demoting an employee, including:
reasons for demotion
pay reduction not necessary
risk of retaliation
demote or terminate
communication is the key
This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).
Second-guessing the advice columns: Don't lie about ...
This blog was written by Shelby Skeabeck, formerly of Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.
No, You Can’t Sleep on the Job, Especially when it’s...
This blog was written by Mathew Parker at Fisher Phillips, which authors several of our resources. You can find the original here and their On the Front Lines Workplace Law Newsletter (which is excellent) here.
We Need to Talk: 5 Tips For Conducting Difficult Workplace Conversations
Zero tolerance for "zero tolerance" policies
"Zero tolerance" is too blunt an instrument, and it may even increase bad behavior.
Chai Feldblum, a Democratic Commissioner of the Equal Employment Opportunity Commission, was quoted this week as saying that "zero tolerance" policies can actuall...
"You’re fired." On The Apprentice, Donald Trump made it look so easy! For the rest of us, a poorly done termination could be costly. Emotions run high, there is a lot of paperwork involved, and an employer can end up with a big mess on their hands. Taking the time to do a termination properly can...