Nasir Pasha, Esq.

Can I Fire an Obnoxious Employee?

Yes, of course you can.  Probably.  Unless there’s a reason you can’t.  But if he’s doing a good job, why does everyone hate him?  You’re the boss.  Shouldn’t you know what’s going on here?

That’s not a particularly satisfying answer, but it does pretty much describe the confusing and self-contradictory state of employment law. So, let’s take it piece by piece.

Yes, You Can Fire Him

The basic rule throughout the United States, except for specific exceptions, is that either the employer or the employee may terminate the employment relationship at any time for good reason, bad reason, or no reason at all.  It’s Tuesday, I quit.  You’re wearing a blue shirt, you’re fired.  It’s called the employment at will doctrine.

Unless You Can’t

The employment at will doctrine is pretty harsh, especially for employees, who often have quite limited bargaining power.  So the law has created protective carve outs.  These exceptions are smaller than most employers appreciate.

The first is for employees hired under a contract.  This exception may come up with unionized employees or highly paid employees or it can arise inadvertently where you have made specific promises to an employee or the employee handbook appears to provide certain guarantees.  Either party still has the power to hit the door, but may be subject to contract damages.

The second collection of exceptions has to do with discrimination on certain prohibited bases, including race, skin color, national origin, religion, age, gender or disability. If an adverse employment action, like firing, is solely for one of those reasons, and not for a reason related to job performance, you may be subject to legal liability.  Yes, you can fire women, members of a racial minority, the elderly or disabled, just not for that reason.  Wearing a blue shirt is still perfectly adequate cause.

Why Does Everyone Dislike Him?

What is actually going on here?  Does the employee throw things at co-workers, look up women’s skirts, or shout out prime numbers at odd moments?  Does he smell of alcohol, or is he just different – the only man in a group of women, the only gay person, the only black person?  These are situations that require vastly different responses.

If the employee is assaultive or harassing, you must intervene to protect other employees.  That might mean firing.  That might mean counseling.  If the employee appears to be ill, in distress, or perhaps suffering from an undisclosed disability like an autism spectrum disorder, first of all, you can’t ask, but you can make information available about benefits like an Employee Assistance Program.  If the employee requests reasonable accommodation for a disability, then you will need to consider what might be reasonable under the circumstances.  Is the employee just the odd man out in an otherwise homogeneous workforce?  Every nerdy adult remembers middle school with horror.  That would call for conducting some workplace diversity/tolerance/sensitivity training.

You’re the Boss, Why Don’t You Know What’s Going on Here?

So, here’s the real problem.  If you conducted regular employment reviews, you would.  You would also have had the chance to say to Al six months ago that his co-workers were bothered by the fact that he spoke so loudly on the phone, and could he please modulate his voice.  Some employers think of these as “stay interviews,” since employees are so expensive to replace.  These interviews also provide an opportunity to make a record to support terminating an employee, which will protect you in the event an employee files a claim of illegal discrimination.  Any nut, including any one of your employees, can sue you.  The question is whether they will win.  Not if you have made a record of counseling and progressive discipline.

Don’t be blackmailed.  Do be supportive of people in distress and do have a clue about what is going on in your workplace.

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