January 27, 2013
While the Employment-At-Will Doctrine allowed employers to terminate an employee for any reason or no reason at all, every situation between employees and employers is not so cut and dry that this may take place automatically. The following scenarios discuss situations where exceptions may apply and steps before termination may need to be taken.
Skills, Competence, and Abilities
In a situation where the employee is unable to learn basic job functions, it is easy to understand how termination would be the very first course of action. The most basic understanding of the Employment-At-Will Doctrine would allow for the employee to ...view middle of the document...
This way, there is evidence that both the employer and employee have the same expectations for what the employee should be able to do after a certain amount of time.
The other exception that may be applied in this situation is the “Covenant-of-good-faith” exception which suggests that there is a certain “just cause” standard to which employers should be held. In this particular scenario, it means that if the employee is terminated, the employer should have to show that the employee’s shortcomings justify termination.
Since the employee is unable to perform the basic job functions after months of training, the next step would be a one-on-one conversation with the employee to find out what their struggles are and if there is any way to accommodate the employee so that they can perform better. This is another conversation that should be documented and put in the employee’s file. That would show evidence that the employer was even willing to make exceptions to their own practices in order to assist the employee. This conversation would also include a warning that if performance did not improve, the employee may be terminated as a result.
Management, Behavior, and Performance
In this scenario, where the employee throws tantrums and seems to be threatening a wrongful discharge lawsuit if any action is taken regarding her violation of the attendance policy, it may be necessary to have a discussion with two authoritative figures of the company (one to act as a witness) to go over expectations for employee behavior and attendance. Like all such discussions with the employee, this conversation should be documented and serve as a disciplinary warning. Since it is impossible to tell exactly what the employee means when she says she knows “what to do,” in the event that her employment is terminated, such documentation would legally protect the company in case she tries to claim she was wrongfully discharged.
This situation is an example of why employee handbooks are essential. A handbook would outline the attendance policy as well as acceptable and unacceptable work behavior. Having an employee’s signature as evidence that they agree to the policies and standards outlined in the handbook would serve as further evidence that the employee was aware that they were in violation of those policies.
Labor and Laws
For the part of the scenario where the employee seems to be attempting to unionize her colleagues, no disciplinary action can be taken legally except for the...