Shawn J. Roberts

Below is some very simple guidance on terminating employees, if you, as an employer, are going to have to do it.  If you happen to catch an employment termination claim, your attorney will be really glad you did these things.

Proper Termination                                        Improper Termination

In working with employers and employees on sexual and racial harassment claims, I have seen some extroadinary stupid actions.  Supervisors who joke about a female suboordinates body parts, a manager running around with panties on his head, a boss who forced female employees to have meetings at strip clubs the and insaneness of a male supervisor referring to a female employee’s pack of cigarettes in her shirt pocket on her chest as a “third tit” (That is a quote).

By far though the email exchange below between a a male supervisor and a female employee about to take medical leave is the worst:

Female Employee: Just reminding you I will be gone from tomorrow through the 14^th, on medical leave.  I know I will be missed J  Hope I have a job when I come back!

Supervisor: You will have a job when you come back . . . it may be as my mistress, but you will have a job.

This exchange teaches two lessons:

1. Don’t write anything you would be embarrassed for your wife, husband, mother to read.
2. If you must write it, remember it could be read in court some day or even worse be published to the world through the Web.

This sexual harassment case settled on terms favorable to the employee.

While giving truthful employment references is not legally actionable, references, by nature, tend to be highly judgmental. The employer’s view of the truth may be different than the employee’s view of the truth. This is particularly true in the case of under-performing employees.

In the case of employment that has been involuntarily terminated [i.e., fired], it is a fair assumption that the employee will typically feel some ill will towards his or her former employer and may just be looking for an excuse to file a legal suit. Often employees who leave the service of a company voluntarily have done so because they were unhappy in the company or in their position. In any case, references given for former employees can create an opening for legal action if the employee does not feel he or she has been fairly represented by the former employer.

Some small business owners feel they can be less cautious when giving verbal references than they would be in the case of supplying a written one. Not true! Any type of reference can be legally actionable. While many courts are sympathetic to the need of employers to give references, others are not. Courts have been known to rule for an employee because a reference given, while good, was not good enough.

It is a safe policy to offer no references at all beyond confirming dates of employment,  position held, and rate of pay earned. This may not seem right, but your responsibility is to keep your business running smoothly and out of court so that your current employees can enjoy a healthy working environment.

It is prudent for employers and employees to know where they stand legally.

In Oklahoma, the “ terminable at-will employment doctrine” allows an employer to discharge an employee for good cause, for no cause, or even for morally wrong cause without being liable for a legal wrong.

It means your Oklahoma employer can terminate you at time, for any reason.  It means you can terminate your employment at any time, for any reason.  Each day of employment is a try out for the next.

Even if you are an “at-will” employee, your employer generally cannot terminate you because of your skin color, your gender, your national origin and some other protected status along those lines.

If you have an employment contract that provides for employment with business for a specific period of time, then you are not an “at-will” employee.