What are some of the legal risks associated with firing someone and what is HR's role in the process?

Answer 1

A perfect HR is the area that reviews your reasons for wanting to terminate an employee, gives you options/plans for discipline, makes sure that the reasons for termination are appropriate and not in conflict with both state and federal laws, provides you with formal paperwork for the termination, and the assistance of an HR rep in the termination meeting. That is a perfect HR, many companies however short-change the HR by not hiring sufficient people, not hiring those with HR experience, and not hiring a lawyer or paying an outside law firm to review such decisions BEFORE they are made.

As for legal risks. An employee can go to the EEOC, the DOL (Department of Labor), or your state's Human Rights dept/commission/office to file a complaint about the termination. An employee can also file a complaint with the EEOC and then have the case immediately moved to Federal Court.

For EEOC and your state's Human Rights office the charge will be discrimination. That is the termination was because of the employee's age, sex, race, ethnic origin, religion, disability, marital or military status. The DOL complaint goes more towards not being paid for all hours, or pay discrepancies.

You should go to www.eeoc.gov to review what really is discrimination, and the employer's duties if sued. Your state's human rights dept will have a similar website. You should also look at www.dol.gov and your state's dol website.

Answer 2

Legal risks are mainly that the person might sue you - even if they eventually lose their suit, it still takes a lot of time and money to defend.

HR should review the situation before the termination takes place. Part of what they will look for is that no law regarding protected classes is being violated. They can also advise the manager on how to conduct the termination meeting. It's not uncommon for an HR person to sit in on the actual termination discussion.

Answer 3

It depends on the company's policies, the state you are in, and the Federal Government. It also depends on if we're talking a major company or small operation. If the guidelines require verbal warning,written warning, suspension, then termination, all steps should be followed and documented. However, if a criminal act occurs, such a fighting, or insubordination, a person may be terminated without the other steps. If a company does not follow the laws, then the employees may file a complaint with their employment division and EEOC. So please check the written policies regardless if you are the manager or the employee.

Answer 4

Depends on your reasons for wanting to fire them, whether you have sufficient evidence to back it up etc. HR should be there in an advisory capacity.

Answer 5

Make sure you have documentation on employee warning records, emails, performance appraisals, etc b/c if they decide to sue you, then you at least have backup paperwork.