Legal Blog

Raising the Bar: Five More Questions to Ask Before Firing an Employee

The decision to fire an employee is almost never an easy one. After making that tough call, the last thing any manager wants is to become embroiled in litigation. Labor and employment disputes are among the most common lawsuits in the US, and even if you believe you’ve covered all of your bases prior to letting a staff member go, there may still exist grounds on which a former employee can accuse your business of wrongful termination. Several Offit Kurman attorneys have recently written about the complex issues surrounding employee termination. Here are five questions they advise you consider before firing any employee:

Has the employee recently filed for bankruptcy?

A little-known anti-discrimination provision contained in Title 11 of the United States Code may pose danger to any private business terminating an employee who has filed for bankruptcy. Offit Kurman Principal explains how firing or hiring an employee solely on a bankruptcy filing or an evaluation of credit may construe an illegal act. Read his counsel on the subject here.

Have you correctly classified the employee?

Approximately 30 percent of employers misclassify their employees as independent contractors, explains Offit Kurman attorney. This common mistake is also costly, and could subject you to liability for unpaid wages and severe tax penalties. Need help figuring out whether a worker is a contractor or employee? Offit Kurman attorney recommends seeking guidance from a competent legal professional.

Can the employee claim to have a psychiatric disorder?

Employees do not always report their disability status as it relates to mental illness and, if not disclosed by a healthcare provider or other individual, a psychiatric disorder may remain absent from managers’ radars for a long stretch of time—especially if it is a substance abuse problem. Offit Kurman attorney outlines how mental disorders manifest in the workplace, how employers can accommodate mental disability claims, and what to do if you suspect an employee is under the influence of drugs or alcohol, in her two-part series available here (part 1) and here (part 2).

What is the employee’s job description?

What may seem like a simple question can cause a major headache for a business owner when a terminated employee files suit. Labor & Employment Practice Group Chair Howard Kurman examines an instance in which a former worker brought her employer to court after she broke her elbow and the company fired her for her inability to perform an essential job function, as part of his Labor & Employment Telebrief earlier this year. Offit Kurman’s Labor & Employment Law Practice Group advises small and mid-market businesses and non-profits on all facets of labor and employment law, including handling employee termination. If you are in need of legal guidance concerning any of the topics listed above, please fill out our contact form to get in touch with an attorney.


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