Texas Wrongful Termination Attorney by rfj10649


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									SECTION SEVEN: TERMINATION OF EMPLOYMENT                           105

Section Seven:

               SECTION SEVEN: TERMINATION OF EMPLOYMENT                                      107

Good Rules for Employee Terminations
Terminations are unpleasant, though sometimes necessary for the effective functioning of the
organization. Here are several steps that nonprofits should consider implementing.

   •   Be fair. Treat all employees with respect and fairness, recognizing that they are the
       organization’s most important asset. Honor employees’ privacy rights and avoid humiliation
       or embarrassment.

   •   Provide training. Provide training to all supervisors and employee managers to ensure fair
       and consistent treatment of all employees.

   •   Provide notice. Communicate clearly and honestly with employees by providing notice,
       counseling, and a reasonable opportunity to improve deficiencies in their work habits or

   •   Consider alternatives. Termination is not the only option. Consider alternatives to
       termination such as probation, suspension with or without pay, demotion, transfer, salary
       freeze, or option to resign.

   •   Be consistent. Establish a process for termination decisions that enables more than one
       person to review the facts and confirm that the organization has treated similarly situated
       employees consistently. If a progressive discipline policy is in place, follow it or explain the
       reasons that justify deviating from the policy.

   •   Document problems. Document thoroughly the process leading up to the termination.
       Don’t try to gather the evidence after the termination decision has been made. Make sure that
       the documentation demonstrates that the decision to terminate is based on the employee’s
       evaluations and disciplinary record and, as a whole, is supported by the facts.

   •   Do not terminate for unlawful reasons. Make sure that the reason for the termination is not
       unlawful, such as serving on a jury, retaliation for reporting violations of laws, or the age of
       the employee.

   •   Seek expert advice. Consider consulting with an attorney prior to the termination of an

All the Wrong Reasons to Fire An Employee
Nonprofits have good reason to be worried about employment-related lawsuits. Insurance companies
report that 75 per cent of the policy claims by nonprofits are employment-related. The majority of

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        108                      SECTION SEVEN: TERMINATION OF EMPLOYMENT

these claims are by former employees who charge wrongful termination. The consequences of a
lawsuit by a former employee include disruption of the organization’s focus and direction, internal
turmoil, financial strains, and damage to the nonprofit’s reputation in the community. If you have
any doubt as to the legality of a termination, consult an attorney.

The following are some of the wrong reasons to fire an employee:

    •     Because the employee refuses to take a lie detector test. Federal law prohibits employers
          from disciplining or discriminating against an employee or job applicant for refusing to take
          a lie detector test. Exception: Certain employees who are reasonably suspected of
          involvement in a workplace theft or embezzlement that resulted in economic loss to the
          employer may be tested. Practice Note: Consult with an attorney before requiring any
          employee to take a lie detector test.

    •     Because the employee is subject to a court order for the payment of a debt. Federal law
          prohibits an employer from discharging an employee whose earnings are subject to
          garnishment for any one debt. Exception: An employee is not subject to protection if the
          employee’s earnings are subject to garnishment for a second or subsequent debt.

    •     Because the employee is pregnant or has recently given birth or because of any
          pregnancy-related medical conditions. The federal Pregnancy Discrimination Act prohibits
          discrimination on the basis of pregnancy, childbirth or related medical conditions. It applies
          to both married and unmarried individuals. The law applies to organizations with 50
          employees and restricts termination unless certain conditions apply.

    •     Because of the employee’s race, color, sex, national origin, disability, religion, or age.
          Under federal law, employers are prohibited from discriminating against individuals for these
          reasons. State laws and city ordinances may include additional groups.

    •     Because the employee may receive benefits under an employee benefit plan. The
          Employment Retirement Income Security Act (“ERISA”) prohibits employers from
          discriminating against employees in order to deny or interfere with their rights under
          employer-sponsored benefit plans.

    •     Because the employee has AIDS or the HIV virus. AIDS and HIV are disabilities. Federal
          law prohibits discrimination against employees because they have AIDS or are perceived to
          have AIDS. Numerous other illnesses and limitations are also considered disabilities and are
          protected under the law. Practice Note: If you are in doubt whether an employee’s condition
          qualifies as a disability, consult with an attorney.

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   •   Because the employee has asserted his rights under state and federal anti-discrimination
       laws. Employers are prohibited from retaliating against an employee who makes a sexual
       harassment or other discrimination complaint.

   •   Because the employee complained about an employer’s violation of state or federal
       health and safety laws. It is illegal for employers to fire employees for complaining that work
       conditions do not comply with state or federal health and safety laws.

   •   Because the employee has alien status. Federal immigration law prohibits employers from
       firing an employee on the ground that the employee is not a U.S. citizen if the employee is
       legally working in the United States.

   •   Because the employee refused to commit an illegal act. State law protects employees from
       discharge for refusing to commit an illegal act, such as participating in corporate fraud.

   •   Because the employee supported a union or a union organizing drive. Federal labor laws
       prohibit discrimination against individuals for legal union activities.

   •   Because the employee is a veteran. Federal regulations prohibit employment discrimination
       against a person because of veteran status.

   •   Because the employee attended jury service or testifed in a court proceeding.

   •   Because the employee complained about violations of federal wage laws or federal
       family and medical leave laws. The Fair Labor Standards Act and Family and Medical Leave
       Act prohibit employers from retaliating against employees who complain that an employer
       has violated these statutes.

   •   Because the employee reported to a law enforcement authority any violation or
       potential violation of any federal offense. Sarbanes Oxley makes retaliation against such an
       individual a criminal offense that may be punished by imprisonment.

Employee Releases
A nonprofit should consider obtaining a release of claims from an employee who is terminated or who
resigns in lieu of termination. To be enforceable and effective, releases must contain certain specific
language. For example, a release of claims of age discrimination will be enforceable only if the waiv-
er of claims is “knowing and voluntary”. Under federal law, to be considered “knowing and volun-
tary”, the release must:

   •   be written in a manner that the employee can understand;
   •   specifically refer to rights arising under the Age Discrimination in Employment Act;

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        110                     SECTION SEVEN: TERMINATION OF EMPLOYMENT

    •     not waive any rights or claims arising after the date of the release;
    •     offer the employee something in return for the waiver;
    •     give the employee at least 21 days to consider the release (or 45 days in the case of a
          termination program affecting multiple employees);
    •     advise the employee to consult with an attorney prior to executing the release; and
    •     provide the employee with seven days to revoke the release.

Practice Note: Consult an attorney if you have questions about whether a release will be

Continued Health Coverage
Under Texas law, employers must provide notice to employees about terminating their right to pay
for continuation of health coverage for six months. Under federal law, employers with 20 or more
employees must provide notice to a terminating employee and the employee’s spouse of the right to
continue health plan coverage for up to 18 months following termination.

Employees who leave employment positions to undertake military service may elect to continue
health coverage for themselves and their dependents for 24 months. For more information, see:

Department of Labor: 1-866-275-7922

Texas Department of Insurance: 1-800-252-3439


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