Overview: Employee terminations are restricted for certain reasons or without proper procedures. While Title VII of the federal Civil Rights Act prohibits termination which discriminates against protected classes of workers, state law can be more expansive in creating classes of workers who are eligible for such protections, shielding employees who are not covered by federal law. Similarly, some states have broader restrictions against retaliatory terminations for certain types of protected activities, like filing workers' compensation claims and for blowing the whistle on unlawful or wasteful practices in the workplace.
Federal and state law also requires employers to utilize notification procedures when they plan to lay off large numbers of employees or close an entire facility. The federal WARN Act sets the minimum standard for covered employers, but some states impose even stricter requirements on employers based on the number of employees they plan to discharge.
Employees leave a company for other reasons as well, through retirement and resignations, some of which can be viewed as forced resignations or constructive discharges. Exit interviews and managing the exit process should be handled consistently and in compliance with federal and state law.
Trends: Employers are increasingly gravitating toward severance packages for employees terminated involuntarily in exchange for waivers or releases of claims against the employer. With these systems in place, employers can preemptively eliminate post-termination threats by providing outgoing employees with something of value. Employers must be prudent, however, in ensuring that such termination agreements are enforceable by crafting agreements in easily digestible language, providing valuable consideration in exchange for waivers and fully documenting the exchange.
Author: Michael Jacobson, JD, Legal Editor
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The EEOC alleges in a recently-filed lawsuit that CVS unlawfully violated employees' rights by conditioning the receipt of severance benefits on an "overly broad, misleading and unenforceable" separation agreement that could deter employees from filing discrimination charges or voluntarily communicating with the EEOC. Employers should continue to follow the development of this case as it will likely have an impact on employer separation agreements.
As mandated by the New Hampshire Department of Labor, all New Hampshire employers with 100 or more workers must post the New Hampshire Worker Adjustment and Retraining Notification (WARN) Notice.
Multistate employers face the challenge of complying with not only federal laws, but also differing state and local laws. This section highlights some of the states' differences in terms of preemployment testing and background checks, noncompetition and nonsolicitation agreements, and discrimination, pay and leave rules.
As mandated by the Department of Labor and Industrial Relations, Workforce Development Division, Hawaii employers must post the Hawaii Required Notice to Dislocated Workers/Plant Closings Poster.
As mandated by the Nevada Department of Employment, Training and Rehabilitation, a Nevada employer must provide a separated employee the Nevada Information for the Unemployed Worker Notice.
An Ohio federal court ruled that "crying spells" were sufficient for an employee to take FMLA leave and found that the employer's dubious response to the leave may have violated the FMLA.
In-depth review of the spectrum of federal legal requirements HR must follow when terminating an employee.
As mandated by Wisconsin's Department of Workforce Development, Equal Rights Division, Wisconsin employers with 50 or more employees must post the Wisconsin Employee Rights Under Wisconsin's Business Closing/Mass Layoff Law Poster.
In-depth review of the spectrum of Illinois employment law requirements HR must follow with respect to employment at-will doctrine.
Guidance for HR on understanding and complying with federal and state law regarding legal and fair employee terminations.