By Carrie Mason-Draffen
DEAR CARRIE: After 20 years of owning a small manufacturing company, I can’t believe I am going to have to fire someone. A new machine operator is making the workplace unbearable. I have been tolerant because the quality of the pieces he makes is good. Plus, he got the new-guy leeway for a few months. But he is becoming more and more of a malcontent. He has had several screaming arguments with co-workers. He has no respect for his immediate supervisor and often calls him foul names to his face. Now, people that have been with me for 10 to 15 years are thinking of quitting or retiring solely because of this person. I know New York is an employment-at-will state, and I can fire him at any time, but I worry about facing a lawsuit. Even though we have been documenting his transgressions lately, I am still worried about the risk the business could face if I let him go. Margins are tight, and we can’t afford a legal battle. But he is just the type to bring one. Can you help me? -First-Time Firer
DEAR FIRST-TIME: You’re correct that New York is an “employment-at-will” state, which gives employers broad latitude to dismiss employees for any reason, with certain exceptions, such as workers covered by a union contract. And employers cannot legally dismiss workers for discriminatory reasons such as race, religion or age.
Despite that freedom, employers face risks, no matter how justified a dismissal is.
“Even in at-will states such as New York, the decision to terminate an employee often poses difficult management challenges and gives rise to the greatest number of employment-related claims,” said employment attorney Howard Wexler.
That is why you prepare. And you have started to do exactly that by documenting the employee’s behavior. Hopefully, you have also warned him about his behavior. Those two steps are key in discouraging or fighting off a wrongful-termination lawsuit, Wexler said.