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New York Employment Law Blog

Sunday, June 11, 2017

Employee Discipline and Wrongful Termination

You may have a claim for wrongful termination if your firing is considered illegal. A termination may be illegal for a variety of reasons—from discrimination to retaliation for asserting your rights.

In most situations that involve discipline, a termination will not be illegal. That is, if an employee is terminated because they are doing something wrong or they are not following company policy, that will not be considered a wrongful termination. However, there are always exceptions to this general rule.

Wrongful Termination and “At Will” Employment

Most employee relationships are based on “at will” employment. This term means that the employee is not subject to an employment contract or another written or verbal promise of work.

“At will” employment also usually means that the employer can terminate employment for any reason that it deems appropriate. This right mimics the employee’s ability to stop coming to work any time that he or she wants.

Generally, if an employee is “at will,” he or she has far fewer options to claim wrongful termination. Nonetheless, there are still certain legal arguments that you can make if you feel that your dismissal was unfair or unethical, one of which may be based on the employer’s disciplinary policy.

Employee Discipline and Wrongful Termination Claims

Many companies have specific disciplinary programs set out in their employee handbooks or other corporate documents. Employees rely on these representations, and a failure to follow them could lead to a wrongful termination lawsuit.

Progressive discipline programs are common in the employment context. They vary a great deal, but many are premised on a version of a “three strikes, and you’re out” policy. In many cases, they involve verbal warnings, then written warnings, and ultimately, termination. Some policies also have provisions for unpaid probation as well.

If a company has this type of progressive discipline policy, it should use it to avoid a wrongful termination action. Failing to follow the disciplinary protocol as written could signal that the firing was not legitimate or went against employee expectations. It may also indicate unequal treatment among employees as well.

Disciplining to Avoid Wrongful Termination Claims

Using a progressive disciplinary policy and sticking to it can cut down on the amount of viable wrongful termination claims from employees. While no state or federal law requires a progressive disciplinary policy, having one is a good idea for several reasons.

Perhaps the most important reason, however, is that it increases the employee’s sense of being treated fairly. Providing an employee with several warnings regarding unacceptable conduct can help employees (and courts) understand the problems with behavior, and it gives employees a chance to correct the issue.

Progressive discipline also provides a helpful paper trail in case litigation does occur. Employers can show the court the rationale behind the decision to terminate and that the reasons are not illegal or illegitimate.

If an employer has a progressive policy, it is critical that they use it as written and discipline evenly among employees. Even-handed use can help combat claims regarding discrimination or retaliation.


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