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March 31, 2009


The possibility of being laid off or fired looms large in the list of fears of most workers. While employers have traditionally had a free hand to hire and fire in the workplace, a number of recent laws and legal rulings restrict these rights. As a result, many soon-to-be-former employees are pleased to find out that they have the power to negotiate severance pay and other benefits on the way out the door in exchange for waiving any possible rights to sue based on a claim of discrimination or wrongful discharge.

For what reasons can I be fired?

Unless you have a written contract with your employer establishing a set number of years for your employment (for example, you are a football coach with a five-year employment contract), you can be fired for a host of traditional and obvious reasons: incompetence, excessive absences, violating certain laws or company rules or sleeping or taking drugs on the job. And you can also be fired or laid off because of company downsizing due to a downturn in revenue, reexamination of the company's mission, a merger with another company or transferring work to a factory in a lower wage area. In most cases, an employer does not need to provide any notice before giving an employee walking papers.

Still, there are limits. Employers do not have the right to discriminate against you illegally or to violate state or federal laws, such as those controlling wages and hours. Most state discrimination laws are quite broad. In addition to protecting against the traditional forms of discrimination based on race, color, religion, national origin and age, many also protect against discrimination based on sexual orientation, physical and mental disability, marital status and receiving public funds. Separate state laws protect workers from being fired or demoted for taking advantage of laws protecting workers from discrimination and unsafe workplace practices. And there are a number of other more complex reasons that may make it illegal for an employer to fire you--all boiling down to the fact that an employer must deal with you fairly and honestly.

I've just received a warning from my employer, and I suspect I will be fired soon. What should I do?

If you find yourself on the receiving end of a disciplinary notice you consider to be unfair, there are several steps you should take to avoid losing your job.

~First, be sure you understand exactly what work behavior is being challenged. Check your company handbook to see if there is a clear policy against the behavior. If you are unclear, ask for a meeting with your supervisor or human resources staff to discuss the issue more thoroughly.

If you disagree with allegations that your work performance or behavior is poor, you may want to ask for the assessment in writing, so you add a written clarification to be inserted in your personnel file. But you should do this only if you feel your employer's assessment is clearly inaccurate; otherwise, you may risk escalating a minor verbal reprimand into a more major incident that will be permanently recorded in your file. Take some time to reflect and perhaps discuss your situation with friends before you sit down to write.

Especially if you feel you are likely to be fired, see if any policy in the employee handbook will buy you time--for example, the right to file an appeal--so the controversy can die down and, if necessary, you can change your work habits.

What can I do to protect any legal rights I might have before leaving my job?

Even if you decide not to challenge the legality of your firing, you will be in a much better position to enforce all of your workplace rights if you carefully document the circumstances. For example, if you apply for unemployment insurance benefits and your former employer challenges that application, you will typically need to prove that you were dismissed for reasons that were not related to your misconduct.

There are a number of ways to document what happened. The easiest is to keep an employment diary where you record and date each significant work-related event such as performance reviews, commendations or reprimands, salary increases or decreases and even informal comments your supervisor makes to you about your work. Note the date, time and location for each event, which members of management were involved and whether or not witnesses were present. Whenever possible, back up your log with materials issued by your employer, such as copies of the employee handbook, memos, brochures, employee orientation videos, and any written evaluations, commendations or criticisms of your work. In addition, if a problem develops, ask to see your personnel file and make a copy of all reports and reviews in it.


Filed Under: Job Search

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