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How to Legally Terminate an Employee 
by Robbi Erickson August 23, 2005

2. The employee is unable to perform the job adequately.

The second legal reason to terminate an employee is if they are not able to perform their job adequately. To be able to defend this reason for termination in a court of law the employer must be able to prove that the employee was incompetent, that the employer took reasonable steps to try and improve the employees performance, and that the employer had addressed the issue in several instances before terminating the employee. To prove that the employer’s position in this kind of situation they will need documented evidence.

First, employers need to prove that their expectations for work standards were reasonable and that an average employee is able to perform at your set standards. To prove this, employers need to provide documents that detail the minimum work standards for the job such as a job analysis, and/or a job description. To prove that an average employee is capable of meeting these standards, they should also provide the performance records of other employees who have the same job responsibilities as the terminated employee. The comparison of many employees’ performance records to the terminated employee’s performance record can be used as proof that indeed it is possible and common for employees to meet or exceed the standards set out and that the terminate employee was well below what is normal.

The next pieces of evidence that employers need to produce are evaluations of the employee in question that document consistent failures to meet the job’s performance standards and that disciplinary actions were taken to address the issue in several instances. Evidence to prove this can include: critical incident reports, employee evaluation forms, feedback forms, signed disciplinary actions, notes made by the employer in regards to the employee’s performance, etc.

The key to defending your position in this situation is a properly formatted and current performance-appraisal system. It should include a job analysis and contain specific and concrete standards that employees have been made aware of.  This should be set out in a writing signed by the employees.  It will affirm that they understand and agree to meet the standards. This system should also include provisions that address behavior measurements, and all evaluations should be carried out by a number of reviewers to rule out any chance that any decision was biased  by a personal distaste for the employee. The system should also provide employees with the opportunity to appeal the findings. Without this documentation, employers are relatively powerless ito defend themselves.

3. The company is reducing is workforce for economic reasons.

The final legal reason for terminating an employee is if it is in the best economic interest of the company in question. Layoffs are common reasons for terminations, especially in larger corporations that are downsizing or restructuring. Here, courtesy is expected, and employees who are involved in a large-scale layoff need to be given at least 60 days notice of the layoff. This courtesy is required by the Worker Adjustment and Retraining Notification Act (WARN).

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