You’re Damned if You Fire an Employee At Will for No Reason.

Posted: June 11, 2012 in Disability Liability, Discrimination, Hiring and Firing

Massachusetts is, like most other states, an employment “at will” state, which means that you can fire an employee for no reason or any reason, as long as it is not an illegal reason. It follows that you don’t need to tell an employee why you are firing him or, right?

Technically, yes, but this can be risky if the employee is in a protected class or otherwise has a prima facie case of employment discrimination. For example, you would not want to fire, for no reason, an employee who just came back from disability leave, FMLA leave, pregnancy leave, or who just told you that they need reasonable accommodations, etc.

If you have a valid reason, you can perhaps still fire such employees. But tread very carefully and get the advice of counsel before doing so; just because you can legally do something doesn’t mean that you should be reckless in inviting a lawsuit, even one that you might win. You should of course try to avoid lawsuits and MCAD or EEOC claims whenever possible. If you have a very valid reason for firing someone in a danger zone for a legal claim, after consultation with competent counsel, you should tell the employee why you are firing them.

Put it in writing even. Think through what will happen if you don’t tell the employee why you fired them. They then run to a plaintiff’s employment lawyer and say that they were fired right after they told their employer that they (were pregnant/became disabled/needed a religious accommodation). The plaintiff’s lawyer will request the personnel file, which will contain no reason for the termination.

Bingo, the employee has a prima facie case for wrongful discrimination. It’s now your obligation to articulate a legitimate, nondiscriminatory reasons for the termination. You see, even though you had no duty to tell the employee why they were being terminated, you have a legal burden of production in discrimination cases to provide the non-discriminatory reason. And what about the fact that you had a legitimate, non-discriminatory reason in the first place, but failed to mention it. You’re just making that up, the plaintiff’s lawyer will say. If you had a legitimate reason for firing, you would have said so at termination.

Wouldn’t you rather defend the case where you had the reason for the termination in writing? I would. Moreover, if you have a detailed notice to the employee about how he (stole company property/lost a key account/harassed other employees), the plaintiff’s lawyer would find that in the personnel file and may not sue in the first place.

If you are considering firing an employee who has a potential claims (and there are many), don’t go it alone. If you need help call me at 617.338.7000. As always, the above is general information and not legal advice.


By Adam P. Whitney

  1. […] You’re Damned if You Fire an Employee At Will for No Reason: Adam P. Whitney, Damned If Blog, explains some of the steps you should consider taking before firing an “at will” employee. […]

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  3. Mac says:

    And if you do give a reason, you have to be ready to defend it. And prove that it was the REAL reason, not one you made up or blew up out of proportion to cover up your real reason.

    “Sub-par performance?” What are your performance standards? For that job? Make sure that the reason is in line with the written description of the employee’s duties. My recent job as a collector limited my lifting requirement to 20 pounds. Yet as part of my (unwritten) furniture delivery jobs I was required to lift as much as 100 pounds over my head and to turn it over and around to cram it through a mobile home door. Good grief; I’m over 60 years old and the company was requiring this of me.

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