When an employer decides to dismiss an employee, it should carefully consider how to manage the process to reduce potential liability. As an initial matter, the employer should implement procedures to ensure that supervisors carry out termination actions in a uniform, professional manner.
Generally, Massachusetts follows the employment-at-will doctrine. This doctrine holds that an employer or employee may end the employment relationship at any time, and for any reason. While this doctrine gives the employer a great deal of discretion in its termination decisions, the doctrine has exceptions.
Federal and Massachusetts laws include several key exceptions to the employment at-will doctrine.
Federal and Massachusetts anti-discrimination laws protect employees from dismissal because of their membership in a protected class, such as:
See Chapter 12: Discrimination, for a more detailed discussion of these laws.
Employers must restore employees who take qualified military leave to the same or a similar position from which they left when they return from duty. See Chapter 18: Military leave, for a more detailed discussion.
Employers must restore employees who take qualified family or medical leave (including parental leave) to the same or similar position. See Chapter 17: Family and medical leave, for more information.
Employers may not dismiss employees who are absent from employment to attend jury duty.
Employers may not threaten to dismiss employees to influence political votes.
Employers may not dismiss employees for filing claims for workers’ compensation.
Employers may not require that employees join or refrain from joining a labor organization as a condition of employment.
Employers may not dismiss employees for any of the following reasons:
When an employee and employer have a written employment agreement that specifically limits the grounds upon which the employment relationship may be terminated, the employer must abide by those grounds or face a potential breach of contract claim.
The Employee Retirement Income Security Act (ERISA) prohibits employers from dismissing employees (benefit plan participants) who exercise rights under ERISA.
While an employer may generally terminate an individual’s employment for any reason or for no reason at all, the employer will be in a better position to defend its decision if it takes certain measures before the action.
The employer should have written work policies or rules concerning how a supervisor carries out the termination of an employee’s position. When an employer clearly communicates its rules and policies, it may be helpful in the later defense of a wrongful termination claim.
The employer should make clear in its policies that it has the right to skip all levels of progressive discipline and proceed to immediate dismissal should the conduct at issue be sufficiently serious. The employer should also state in its policies that it has the right to change its policies at any time, and that its written policies do not include all areas of potential misconduct.
Managers should thoroughly familiarize themselves with the employer’s rules and policies so that they may fairly and accurately carry them out.
When an employer makes a decision based on incomplete or inaccurate facts, not only will the employee suspect improper motives, but a judge or jury may also come to this conclusion. It is therefore important for a supervisor to obtain the objective review of its decision from another supervisor or human resources employee before it carries out the action. This individual should:
If an employer has a human resources department, it should require supervisors to involve the department at all stages of discipline, including termination. Human resources professionals typically are familiar with employment issues, and the proper manner to handle discipline. They may also serve as witnesses to disputes between a supervisor and employee. If an employer does not have a human resources department, it should consult an attorney if it believes that its termination decision has the potential to lead to a legal claim.
Employers must be consistent in their treatment of employees. Management should consider the company’s past practice in situations similar to the situation at hand and determine whether its treatment of the employee is the same as its treatment of other employees in similar situations. If not, the employer should consider how it justifies the different treatment. Some factors to consider are:
When an employer decides to dismiss an employee, it should consider whether the decision may trigger an employment discrimination or retaliation claim, and whether such a claim would have any merit. The employer should consider:
An employer should support its termination decision with accurate documentation of employee performance issues and/or discipline. Generally, courts and juries put more weight on written documentation than on the recollection of witnesses. Accordingly, all employer actions should be documented and retained in the employee’s personnel file, including:
Terminating an employee’s position is a delicate undertaking under the best circumstances. When an employer communicates its decision to the employee, the supervisor and a human resources representative should be present at the meeting. The supervisor should explain its reason for the dismissal (if there is one) to the employee. The supervisor and/or the human resources representative should document the reason communicated to the employee, and should record any response by the employee.
The meeting should be brief. The supervisor should aim to convey the information in a straight forward and candid manner, rather than attempting to minimize the employee’s areas of weakness or complementing other areas of the employee’s performance. At all times, the employer should treat the employee with respect.
The employer may want to follow a general outline. These are the following key points to make in the meeting:
If the employer believes the employee may file a claim upon dismissal or if a major dispute between the employer and employee exists at the time of termination, it may be in the employer’s best interest to enter into a separation agreement that contains a release of all actual and potential claims by the employee. In a separation and release agreement, the employer agrees to provide some additional compensation to the employee in exchange for the employee’s agreement to release the employer from any claims that the employee may pursue against the employer in the future. The employer should seek legal counsel to draft a separation and release agreement.
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