EMPLOYERS | Terminating The Employment Relationship

Texas is an “at-will” state

  1. This means that in the absence of a written or implied agreement that says otherwise, an employer may terminate the employment relationship at any time for any reason, except for certain limitations imposed by state and federal law.
  2. Limitations: Both federal and state law prohibit an employer from discriminating against an employee or prospective employee, in its hiring, firing and managing of employees, on the basis of
    1. race
    2. color
    3. age
    4. sex
    5. religion
    6. national origin
    7. disability status
    8. the employee’s
      1. reporting of violations of law in the workplace
      2. opposing a discriminatory practice
      3. filing a complaint
      4. applying for and receiving benefits or an accommodation under workers’ compensation, medical leave or disability-related laws
      5. testifying, assisting or participating in an investigation, proceeding or hearing
      6. refusing to perform illegal acts

Decision to terminate or discipline

  1. Documents to review before terminating or disciplining an employee
    1. The employee’s evaluations
    2. Warnings received by the employee
    3. Personnel policies or work rules
    4. Statements of witnesses and co-workers
    5. Notes of interviews of witnesses and co-workers
    6. Other documents such as customer complaints, written communications or statements by the employee, accident reports, time cards, safety inspection reports
  2. Important questions to consider before terminating or disciplining
    1. When was the employee hired?
    2. The employee’s history promotions and whether they were merit-based or based on some other consideration
    3. Employee’s record of commendations, awards or other recognition.
    4. How have previous similar cases been treated?
    5. Does the written record support your decision?
    6. Is the reason given for the action consistent with the company’s personnel policies or work rules?
      1. The credibility of the employee and his or her witnesses versus that of the company’s witnesses.
      2. Are there any mitigating circumstances or facts that compel sympathy for the employee?
      3. Would a less severe action that the one proposed be more appropriate?
      4. Has the decision-maker been appropriately selected?
      5. Can what is known be proved?
  3. Exit interviews
    1. Reasons for the action must be clearly and honestly stated.
    2. Avoid “sugar-coating” the reasons.
    3. Don’t use a reduction-in-force as a pretext.
    4. Take responsibility for the decision.
    5. Clearly state what you will tell prospective employers about the employee.
    6. Records should accurately the reason for the action.