Terminating the Employment Relationship

I NTRODUCTION

Section 1

Employment relationships are similar to personal relationships. Sometimes, they do not end to the satisfaction of both parties. One party may want for the relationship to continue, while the other party has a beneficial interest in severing the relationship and moving on to greener pastures. Where there is a “good break-up,” both parties may move forward with no or relatively few feelings of resentment. Conversely, a “bad break-up” may leave one party harboring resentment and looking for retribution. In the case of employment relationships, a “bad break- up” may lead to a lawsuit and potentially liability, and certainly spending money litigating, settling or both. There are two ways an employment relationship ends: involuntarily and voluntarily. For purposes of this workbook, an involuntary separation occurs when the employer severs the employment relationship with an employee who otherwise desires to continue working for the employer. Voluntary separations occur when an employee elects to end the employment relationship. While liability most often arises out of involuntary separations, it can also arise out of voluntary separations if an employer does not adequately take protective measures. The purpose of this workbook is to provide public employers with guidance regarding the best practices and procedures to use when involuntarily or voluntarily ending the employment relationship with an employee or group of employees. Although the majority of the workbook focuses on involuntary separations, parts of the workbook touch on best practices for avoiding liability in voluntary separations, such as when an employee elects to retire. When using this workbook, it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation. Ending the employment relationship with an employee often requires a unique, fact-intensive analysis. The analysis can change with the absence or addition of a single fact. Therefore, we advise that you consult an attorney when dealing with a situation that could lead to future liability.

T ERMINATING AN E MPLOYEE

Section 2

When making the decision to terminate an employee, an employer must consider several key factors if it wants to avoid liability. These factors include:

The agency’s rules, procedures, and past-practice;

The nature of the employment relationship (e.g., “at-will” versus “for cause”);

The potential legal ramifications (e.g., has the employee recently filed a sexual harassment complaint?); and

Whether the reason can be explained and supported by evidence.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 8