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Firing An Employee: Understanding the Legal Implications

Gordon Blake 2016-07-28 10:00:00

Even the best, most conscientious employer sometimes needs the help from a lawyer. Even though you can handle most employment issues on your own, some matters may require some legal assistance. The tricky part is to determine when you will need expert advice and which situations you can handle by yourself. Here are some issues and tasks you should consider speaking to a lawyer about before making any decisions.

If you’re worried that the employee might sue, you should probably speak to a lawyer before firing the person for performance problems, misconduct, or any other poor behaviour. A lawyer can tell you if the termination would be legal and what you can do to reduce your risks of a lawsuit. Here are some particular situations when you should ask a lawyer to go over your decision to fire.

  • The worker has an oral or written employment contract that limits your right to fire him or her.
  • The worker has stock options, retirement money, or benefits that are due to vest shortly.
  • The employee believes that he or she has an implied employment contract limiting your right to fire.
  • The worker recently filed a claim or complaint with a government agency.
  • The employee recently complained to you about unethical or illegal activity in the workplace.
  • The employee recently revealed that she or he is in a protected class.
  • The worker recently filed a complaint of harassment or discrimination.
  • Firing the employee would drastically change your workplace demographics.
  • You have concerns about the worker’s potential for sabotage, violence, or vandalism.
  • You are firing the worker for excessive absences and it could be possible that the absences are covered by legislation.
  • The employee has hired a lawyer to represent him or her in dealings with you.
    The worker has access to high-level trade secrets or competitive info.

For more information, Business News Daily has 15 tips on how to fire an employee.

Before you classify a certain position as nonexempt or exempt, or labelling a group of people independent contractors instead of employees, you should talk to a lawyer. Misclassification will carry with it a hefty price tag, which often includes penalties and years of unpaid overtime for multiple employees.

If you’re planning to make an employment decision that would affect a large number of employees like a lay off, change or discontinue an employee benefit, or change your pension plan, you should talk to a lawyer. He or she can tell you about any potential legal troubles you might face and can give you advice on how to avoid them.

If a former or current employee sues you, talk to a lawyer immediately. Employment lawsuits can be very complicated and some actions have to be taken right away to ensure your rights are protected, and to preserve any evidence that may be used in court. Start looking for a lawyer as soon as you receive notice of a lawsuit against you. In the Greater Toronto Area, Whitten and Lublin LLP is a well-known law firm that specializes in employment law cases.

There are occasions when an employee or former employee initiates a claim or appeals the denial of unemployment benefits. In these situations, consult a lawyer and see if he or she can offer any advice. You may want to hire an employment lawyer if any of the following occur:

  • the employee has made claims that could result in a large award of damages against you or your company;
  • the employee has indicated that he or she intends to file a lawsuit; and
  • the employee has hired a lawyer.

A lawyer can quickly go over and amend employment-related agreements and contracts to make sure they have all the necessary legal terms that will be enforced by a court.

Ask a lawyer to review your employee handbook or personnel policies to ensure they don’t violate any laws pertaining to family leave, overtime pay, occupational health and safety, and final paycheques. He or she will also look for language that could create unintended obligations towards your employees, and can make suggestions regarding any additional policies you might want to incorporate.


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