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 a law restricting forum selection clauses relevant to employee terminations, effective January 1, 2017.
Updated to include information on Cuevas v. Wentworth Group, which relates to the use of expert testimony as proof in certain claims for emotional distress.
Updated to include information on Capeggi v. Arche, Inc., which clarified requirements for valid, written employment contracts as opposed to at-will employment.
Updated to reflect amendments to the severance pay and 'mass layoff' requirements, effective July 29, 2016.
Updated to include information on Gerardot v. Life Care Centers of America, which concerns wrongful termination in violation of public policy.
Updated to an amendment to the definition of 'just cause' concerning the usage of medical marijuana by employees and eligibility for unemployment benefits.
Enhanced to include regulations protecting franchisors from several types of employment litigation, effective May 10, 2016.
Updated to reflect legislation that protects franchisors from being sued as employers or co-employers when disputes arise with employees of franchisees.
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.
HR and legal considerations regarding termination for cause. Guidance on handling these terminations in a way that minimizes risk and liability.