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  • HR Specialist: Employment Law
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Note exact date you informed employees they would be losing their jobs

Former employees generally have just 300 days to file an EEOC discrimination complaint, and the clock starts ticking on the last date discrimination occurred. But in the case of an announced termination, the crucial date is when the employee learned she was going to lose her job.

Firing whistleblower? Be clear about timing

Employers should make sure to note exactly when they terminate a whistleblower. Then they should challenge any whistleblower retaliation complaints filed more than 30 days after that date.

Use date-and-time-stamp to document when firing decision was really made

Having proof of exactly when you recorded the need for discipline can be useful if a claim winds up in court.

Never discourage laid-off employees from reapplying

If you use economic reasons to justify laying off employees, be careful not to discourage them from applying for other jobs. That could be evidence you targeted them for termination for some unlawful reason.

Mistaken termination? Offer reinstatement ASAP

If you realize you erred in terminating an employee, it usually makes sense to immediately offer to reinstate him.

Take extra care when firing after ADA, FMLA

Firing an employee who is returning from ADA or FMLA leave is a risky proposition. Make absolutely sure you can justify the termination with legitimate business reasons that have nothing to do with missing work, taking leave or requesting accommodations.

Take proactive steps to assert at-will status

A former employee who contests a termination in court may overcome the at-will presumption by presenting some evidence that there was either a specific written agreement spelling out employment terms or an implied agreement that employment would continue for an indefinite period of time unless there was some good cause for termination.

Talk it out to avert constructive discharge suit

Workers can sometimes quit and sue, alleging they were “constructively discharged.” To win such a lawsuit, the former employee must show that a hypothetical reasonable employee would have felt just as compelled to quit had she experienced the same adverse working conditions.

Good faith wins, even if you might have been wrong

Courts almost never second-guess employers’ decisions—even dubious ones—as long as they are confident the decisions were made in good faith.

No need for termination notice to state reason

Employers don’t necessarily have to detail why they decided to fire an employee, for example in a formal termination notice. If they are later sued, it’s enough to provide original documentation justifying the legitimacy of the discharge.