Firing can be done right
Published 06/03/05

If a company is considering firing an employee, handling it the wrong way can expose the company to liability.

Under the New Hampshire employee-at-will doctrine, it is generally lawful for an employer to fire an employee without notice or cause unless the employee is protected by a specific contract provision or various state or federal laws which protect employees from discrimination, retaliation, or other specified wrongs.

However, even under the employee-at-will doctrine, if the employee can show that he was fired in bad faith or in retaliation and for doing something that public policy would encourage, or refusing to do something that public policy would discourage, then he may have a wrongful discharge claim against this employer. Before a firing decision is made, it is often prudent to speak with the company's employment attorney to analyze whether under the circumstances the firing should occur at that time and, if so, how.

In general, employers should consider three factors in dealing with employees at all levels of the employer/employee relationship, including firing: (a) fairness; (b) diligence; and (c) dignity.

During the firing process, the employer should:

•  Conduct the meeting at one of the least embarrassing locations for the employee.

•  Get to the point quickly, letting the employee know he is being fired and why.

•  Never be evasive as to the grounds for the termination. If you cannot tell the truth,         then you should consult with your employment attorney. A judge or jury will make negative inferences from an employer's lie.

•  Listen to your employee's point of view but do not argue with the employee.

•  Never apologize for the decision to terminate an employee. If you have reason to apologize you should seriously consider the termination decision. If you are terminating an employee for valid business reasons there is no reason to apologize.

•  Review with the employee the benefits he will continue to receive and those which will be terminated or discontinued and follow up with a writing.

•  Provide the employee his last paycheck with any accrued vacation during this meeting (rather than within 72 hours of the termination which is required under New Hampshire law).

•  If the employee is paid by salary rather than hourly, pay him for the entire pay period even if he only worked a portion of it.

•  Never indicate that the termination may have been avoided if the employee had not filed a complaint or gone over the head of his supervisor. Such a statement may result in a retaliation claim under Worker's Compensation Statute, the Whistleblowers Statute, state or federal discrimination statutes or other laws.

•  Take detailed notes of both sides of your conversation. It may also be appropriate to have a second person in the meeting on behalf of the company as an additional witness, such as the employee's supervisor.

•  Think twice before objecting to the employee's unemployment compensation claim. Check with your employment counsel to analyze: (i) the effect on the morale of the remaining employees; (ii) whether you will be successful; and (iii) whether objecting to the unemployment claim will result in the former employee hiring an attorney and making some employment claim against the company.

If an employer considers treating its employee as the employer would wish to be treated under the similar circumstances, the employer may substantially lessen its exposure to claims and lawsuits as a result of the termination process.

Furthermore, the morale of the remaining employees will be generally better if the employer is viewed as fair and respectful to employees who are fired, irrespective of whether the reason for the firing was the employee's fault.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.