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
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