Take for example the case of a 50-year-old woman who fell while working at a U.S.-based company. She followed company procedure and went to the workplace medical office to be seen for her injuries. As part of the examination, the doctor performed a drug test. She tested positive for marijuana. The company fired her, and workers' compensation denied her claim. She argued she only used pot outside of work and was never high while on the job. Since marijuana is legal in her state, she said it's no different than an employee drinking a glass of wine after work. She hired an attorney and sued for wrongful termination, also claiming discrimination because of her age.
In my 15 years of executive search, I’ve only had two people fail drug screens. In this case, let's address the marijuana issue strictly from a job-performance perspective.
It's fair to say that occasional medical or recreational marijuana or alcohol use won’t affect job performance. The challenge is when that use negatively impacts performance and you need to fire the employee. Before you do, ask yourself: Are you firing the employee because of marijuana use, or because marijuana use is affecting their performance?
Even if you never run into a problem with drug use by an employee, chances are you'll have a fired employee challenge a termination during your career. This means it’s imperative that you're familiar with all state, federal and case law surrounding employment issues — especially Title VII that we outlined in the first of this three-part series. To explore hiring and firing, let's consider legitimate reasons to fire someone, gray areas and how to navigate around them, and how to protect your company from a wrongful termination suit when firing anyone, even a protected-class employee.
Legitimate Reasons To Fire An Employee
You may not like everyone with whom you work during your career, but unfortunately, that's not a reason to fire someone. There are, however, many legitimate reasons to fire an employee. Those reasons include:
• Poor performance
• Gross misconduct
• General layoffs
• Violence
• False or plagiarized work
• Sexual harassment
• Discrimination
• Destruction of property
When you terminate an employee for legitimate reasons and have documentation to back that up, you should be protected even if the employee challenges the firing in court.
Recognize And Navigate Gray Areas
Deciding to fire an employee is rarely black and white, even in at-will employment states. But navigating those gray areas isn't impossible. Many areas revolve around contracts, public policy and good faith.
Contracts: Before you can fire someone for violating policy in the employee handbook, you must know whether your state considers that a binding contract or policy. New Jersey, for example, says an employee handbook is an implied contract. However, in Pennsylvania, state law considers a handbook only a guideline.
Public policy: Workers' compensation is a good example of this gray area. In many states, companies cannot fire an employee for filing a workers' compensation claim. However, if the employee fails a drug test as part of the process, you may have grounds for termination.
Good faith: Eleven states say a company can't terminate an employee without just cause. That means an employer cannot dismiss someone in bad faith or for reasons driven by malice. That is why it's important to keep detailed documents on all corrective actions, complaints and evaluations of employees.
The bottom line is that you must be aware of the laws in your state, and it never hurts to get individualized legal help.
Protect Against Wrongful Termination Suits
Just because an employee or job candidate is in a protected class doesn't mean they're immune from termination or that you must hire them. But, be careful that you're not discriminating or giving anyone the perception that you're discriminating. By following guidelines like companywide anti-discrimination practices and fair recruitment processes, you further protect yourself and your company.
Practice prevention measures: Take time to assess your company’s anti-discrimination procedures. Do you treat all employees equally? Do you follow your own nondiscrimination policies? How are you documenting all performance issues? Are you informing employees of all problems?
Be fair in all recruitment processes: This step goes beyond simply listing that you are an Equal Opportunity Employer on a job listing. Here are two other guidelines to consider:
• Ensure all job advertisements, recruiting practices and background checks are unbiased. If your job ad says anything about gender or "recent college graduates," you may be discouraging people from applying.
• Employers must, in most cases, offer job applicants with disabilities accommodations to apply for a job (e.g., a sign language interpreter). Failure to do so may violate the law unless the accommodation causes the company significant expense or difficulty.
Know what you can and can’t say: Family, age or religion may come up in regular conversation, but these aren't topics you can broach in a job interview. In addition, the law forbids talk of particular topics, including disability, pregnancy status, race and sex, among others.
Protect yourself: When you do need to fire a protected-class employee, consider consulting legal advice, but also follow these guidelines:
• Put the employee on probation.
• Have a witness in the termination meeting.
• Offer an incentive to sign a legal release, such as increased severance pay.
• Understand the terminated employee's rights, including unemployment insurance, benefits and 401(k)s.
HR professionals walk a fine line when hiring and firing. When you know and understand state and federal laws, you can protect yourself and your company from lawsuits.
Rounding out this series, we will next discuss the legal rights of a protected-class employee who feels they have been wrongfully terminated.
