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'You're Fired!'
On a weekly basis, millions of Americans watch Donald Trump direct his imperious gaze at someone and snarl, 'You're fired!' As Trump continues to dismiss these would-be apprentices, the ratings climb. For Trump, 'You're fired!' has become a money-maker. But for Human Resources managers and in-house counsel, 'You're fired' is a dreaded phrase that will bring not an increase in ratings, but an increase in lawsuits. A poorly executed termination exposes the employer to significant liability; even a simple discrimination claim can cost the employer $100,000 in defense costs. Not surprisingly, human resources managers and in-house counsel seek to minimize risk by advising caution in terminating an employee. Sometimes this caution paralyzes the employer, and a poor performer remains straining the organization and contributing to significant morale problems. The costs of keeping a poor performer are no less real than the costs of a discrimination lawsuit, though more difficult to quantify. Many human resources managers and in-house counsel understand and appreciate the risk of firing an employee, but fail to understand and appreciate the risks of keeping the employee. As a result, many poor performers remain in their organizations.
Pitfalls of Employment-at-Will
Human Resources managers and in-house counsel have come to recognize that the employment at will doctrine, which would permit an employer to terminate an employee without liability, is so littered with statutory and common law exceptions that it provides little legal protection for a badly handled termination. Few human resources managers or in-house counsel would rely on employment at will. They recognize that while employment discrimination laws in particular, and other laws that protect employees from wrongful termination in general, provide that the employee must prove that the termination was wrongful, the reality is very different. The employer will be pressed to justify the termination ' not merely prove that it was free from an improper motive.
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