Overview: The vast majority of employee terminations are terminations for cause, stemming from poor performance, attendance or relations with fellow employees. While employers are not always required to provide evidence substantiating a decision to terminate an employee, best practice is to prepare for such terminations as though such evidence will be required.
HR professionals and supervisors can help reduce employer risks by being proactive before termination for cause. They should speak with problematic employees to address issues that affect their performance in the workplace, conduct candid and thorough performance evaluations, encourage employees to participate in performance management plans and otherwise warn or discipline problematic employees before the final step of termination is required. And throughout this process, HR professionals and supervisors should document all of their dealings with problematic employees, in factual detail, to prepare for litigation.
Trends: Most states protect employees who are retained by specific written or verbal contract from termination without cause, even if the contract does not include such a provision. However, some states require higher levels of proof to substantiate cause than others. In Tennessee, for example, employers bear the burden of proof to establish that good cause for termination is related to the job itself, as opposed to some extraneous influence.
Montana, on the other hand, presumes that all employees are protected by just-cause termination requirements, even if they are not retained by written or verbal contract. This makes Montana the major exception to the employment at-will doctrine.
Author: Michael Jacobson, JD, Legal Editor
Updated to reflect whistleblower protections under the federal Defend Trade Secrets Act, effective May 11, 2016.
Updated to reflect employee retention and notification requirements under the New York City Grocery Worker Retention Act, effective May 8, 2016.
Updated to reflect forthcoming amendments to severance pay and notification requirements in the event of a mass layoff or plant closing under the Maine Severance Pay Act.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Involuntary Terminations
In-depth review of the spectrum of Tennessee employment law requirements HR must follow with respect to involuntary terminations.
Updated to reflect new legislation that protects grocery workers from termination for a period of time following a change in ownership.
Updated to reflect new limitations on claims for wrongful termination in violation of public policy as a result of Rollins v. Rollins Trucking.
Updated to reflect new limitations on filing claims for constructive discharge as a result of Lucarell v. Nationwide Mut. Ins. Co..
Updated to reflect new limitations on claims for defamation related to a termination letter as a result of Harris v. Brewer.
Updated to reflect new legislation that protects some franchisors from employment claims, but with some exceptions, effective December 23, 2015.
HR and legal considerations regarding termination for cause. Guidance on handling these terminations in a way that minimizes risk and liability.