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How to Fire a "Bulletproof" Employee

The last issue of LegalBriefs discussed how poor performers or troublemakers can become "bulletproof" before you take action to terminate them. They file a workers compensation claim or complain about any one of a number of conditions protected by statute, whether the complaints are legitimate or not. This article discusses how to terminate those employees if they really are not working out.

Let's begin by stating that the risk for retaliating against employees for engaging in a protective activity are high. Employees win 63% of retaliation claims. When they win, they win an average of $845,147. Attorneys representing employees know this and you must assume that your employee has met with an attorney without your knowing it and they too are aware of these figures.

You can not fire an employee for filing a workers compensation claim or making any one of a number of other complaints, regardless of whether they are true. You can, however, discipline and terminate employees for poor performance and inappropriate conduct. The key is a fair and thorough investigation conducted by someone who is not aware of the events that can give rise to a retaliation claim.

There is a line of cases from California, suggesting that if an investigation is conducted by an outside attorney and the employer relies in good faith on the attorney's conclusion when making an employment decision, the employer is shielded from liability, even if the attorney's conclusion is wrong.

Recently, a local employer fired an employee on the spot for being insubordinate to an owner in the middle of the shop floor. The employee happened to be diabetic. He of course claimed that the real reason why he was fired was because of his diabetes and that was in violation of the Americans with Disabilities Act. Things got nasty.

At about the same time, another employer had an employee, who had previously filed a workers compensation claim, that they suspected of stealing from the business. After the employee was fired, she filed a complaint with the state alleging retaliation for the workers compensation claim. The case was promptly dismissed. What was the difference? In the second case, the employer engaged me to conduct an investigation, I concluded that the employee had in fact stolen from the business and the employer decided to terminate the employee based upon the results of my investigation. The investigation utilized a process that was fair to the employee, allowed the employee to confront the evidence against her and met fairness and due process requirements.

When the state investigator stated that it appeared that the termination was in retaliation for a prior workers compensation complaint, I pointed out that the investigation was conducted by me without regard to the prior complaint. The state's investigation was quickly concluded in the employer's favor and nothing more was heard about the termination.

If an employee is a member of a protected class, such as the employee with diabetes or the employee who had filed a workers compensation claim, there are steps you should take before disciplining or terminating the employee. These steps are good advice in most discipline and termination decisions.

Do: Do have fair and impartial investigations conducted by a person you can demonstrate is not aware of the facts giving rise to the employee's bulletproof or protected class status. An outside attorney with experience in conducting employment investigations is often the best choice.

Do: Do recognize that employees that are members of a protected class create a special and risky situation and consult an experienced attorney before terminating, disciplining or changing the working conditions of the employee.

Don't: Don't fall into the trap of believing that you can allow a little time to pass after an employee's claim or complaint and then find a reason to fire them. Many employers have learned at great cost that this can lead to liability.

Don't: Don't assume that you can not fire employees who fail to meet your standards or cause trouble simple because they are a member of a protected class. Remember what successful business owner and author Harvey McKay says in Lesson 49 in his book Swim With the Sharks Without Being Eaten Alive. "It isn't the people you fire who make your life miserable, it's the people you don't."

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