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Help Wanted: How to fire a bully without getting sued

"Even in at-will states such as New York, the decision to terminate an employee often poses difficult management challenges and gives rise to the greatest number of employment-related claims," said employment attorney Howard Wexler of Seyfarth Shaw in Manhattan. Photo Credit: iStock

DEAR CARRIE: After 20 years of owning a small manufacturing company, I can't believe I am going to have to fire someone. A new machine operator is making the workplace unbearable. I have been tolerant because the quality of the pieces he makes is good. Plus, he got the new-guy leeway for a few months. But he is becoming more and more of a malcontent. He has had several screaming arguments with co-workers. He has no respect for his immediate supervisor and often calls him foul names to his face. Now, people that have been with me for 10 to 15 years are thinking of quitting or retiring solely because of this person. I know New York is an employment-at-will state, and I can fire him at any time, but I worry about facing a lawsuit. Even though we have been documenting his transgressions lately, I am still worried about the risk the business could face if I let him go. Margins are tight, and we can't afford a legal battle. But he is just the type to bring one. Can you help me? -- First-Time Firer

DEAR FIRST-TIME: You're correct that New York is an "employment-at-will" state, which gives employers broad latitude to dismiss employees for any reason, with certain exceptions, such as workers covered by a union contract. And employers cannot legally dismiss workers for discriminatory reasons such as race, religion or age.

Despite that freedom, employers face risks, no matter how justified a dismissal is.

"Even in at-will states such as New York, the decision to terminate an employee often poses difficult management challenges and gives rise to the greatest number of employment-related claims," said employment attorney Howard Wexler of Seyfarth Shaw in Manhattan.

That is why you prepare. And you have started to do exactly that by documenting the employee's behavior. Hopefully, you have also warned him about his behavior. Those two steps are key in discouraging or fighting off a wrongful-termination lawsuit, Wexler said.

"To maximize the opportunity to defend a challenged termination, management should address the concepts of notice (Did management warn the employee of . . . problems?) and fairness (Did the worker have a sufficient opportunity to improve his or her performance?)," Wexler said.

Next, when conveying termination decisions, employers should try to have two management representatives present -- one to convey the decision and one to witness the discussion, Wexler said. A collective-bargaining agreement might require a union rep to be present.

"The discussion should be short and to the point," he said. "There should not be a rehash of the decision. It should also be borne in mind that many employees who are being terminated will surreptitiously tape the conversation."

At that meeting, you should also have all appropriate forms and information on hand regarding severance, benefits, future references and outplacement help, he said.

"Under certain circumstances, and to assure no future claims, an employer may also want to seek a written release of any claims by the employee in return for severance," he said. "In any event, this meeting provides an opportunity for a final accounting of all employer and employee responsibilities, including the worker's return of keys, computer disks and other miscellaneous items of company property."

Lastly, labor law requires employers to take certain steps after a firing, Wexler said. They must provide a written notice to a dismissed employee, with the exact date of the person's termination as well as the exact date of the cancellation of benefits, by no later than five work days after the firing. And, employers must pay the final earned wages of a terminated employee by no later than the next regular payday covering that work.

Go to http://bit.ly/1AJ6rt4 for more on what employers must do to comply with state labor law after firing an employee.

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