Letting go of someone in a protected class can be complicated
Wisconsin is an at-will employment state, which means a worker’s employment can be terminated at any time for any reason. That’s as long as the reason isn’t discriminatory or retaliatory, or otherwise prohibited by law, but the appearance of such is understandably when things can get complicated.
By law, employees cannot be terminated for reasons related to protected classes such as age (those 40 and over), race, color, national origin, religion, gender, disability, pregnancy, citizenship, veteran status, genetic information and more. So when it’s time to let an employee go, what’s an employer to do when that individual does fall within a protected class?
The law offers no protection for termination for cause
It’s a delicate situation, and one that requires an employer to tread cautiously. While the law does protect certain employees within established parameters, it does not shield those employees from discipline that is warranted for job performance issues or other legitimate nondiscriminatory reasons. So while a staff member would be protected from retaliation (such as termination of employment) for filing a complaint about workplace harassment, discrimination or other issues, they would not be protected from termination of employment for a legitimate nondiscriminatory reason, such as not doing their job or attendance issues, etc.
Tips for terminating employment
So, how should an employer proceed when faced with an at-will employee in a protected class who must be let go for legal, supported reasons? Here are some helpful tips.
Consider the state and federal laws that protect certain classes of people.
This may include the Americans with Disabilities Act, the Wisconsin Fair Employment Act, the Age Discrimination in Employment Act, Title VII, and the newer Pregnant Workers Fairness Act and the anti-retaliation provisions of these laws, among others. You might also consider whether there are other laws that might provide a possible claim for the employee such as Workers Compensation or Family and Medical Leave Act violations. Familiarize yourself with the laws applicable to the specific employee, and assess your risk. These laws can be complex, and you’ll want to have clear understanding before you proceed. You may want to seek the help of an employment lawyer in Wisconsin for peace of mind.
Take an in-depth look at the employee’s personnel file.
Review written performances and any disciplinary actions taken during the employee’s tenure. Was the employee reprimanded in the past? Were they given a warning and provided further training, coaching or a probationary period? And have other employees been let go for similar reasons (policies and procedures should be enforced consistently and uniformly)? If the employee claims wrongful termination, this supporting evidence will be essential to your case and will help prove that you fired the employee for a legitimate nondiscriminatory reason. Not having documentation of this sort makes the organization vulnerable to litigation, and it may be best to hold off on terminating the employee until you have documentation of performance issues. Consider whether poor job performance is related to an employee’s disability and whether the organization accommodated the employee so that they could properly perform their job functions. Legal action for cases like these can become lengthy and expensive.
Protect your company in writing.
Many companies offer a severance package to resolve an anticipated employment termination dispute. As a part of the severance package, employees may be asked to sign a release and waive claims arising from the termination. The United States Supreme Court has held that employees may still file a claim with the Equal Employment Opportunity Commission even after signing a waiver, but they cannot recover monetary damages. Meanwhile, the EEOC can still take action if they believe a discriminatory act occurred.
Minimize chances of legal action
There is no way for an organization to prevent an employee from filing a complaint with the EEOC or the state, a move that frequently precedes filing a lawsuit. However, when complex termination cases arise, there are steps an employer can take to minimize the chances of legal action. As always with complex legal matters, if you have questions about worker rights or employment law, consult with an experienced Wisconsin employment lawyer before taking action.
By Ellen Frantz, La Crosse Employment Lawyer. For an employment lawyer in La Crosse, call 608-784-5678.