Giving someone the axe ... the right way

While firing an employee is never easy, knowing the potential legal ramifications can make it less stressful. Here are some basics:

Grounds to terminate. Most nonveterinary employees are employed at-will, and you can terminate an at-will employee at any time, with or without notice, but not without some limitations and exceptions. You can't terminate an at-will employee because of sex, race, age, disability, or national origin, for refusing to violate a law, for exercising a legal right such as filing for Workers' Compensation, or for reporting an employer's violation of the law in good faith. And if your employee policies or a written contract outline grounds for termination, you must follow these guidelines.

Documenting the termination. There's no legal requirement that you document anything. The push for documentation is a risk-management technique that makes a lawsuit easier to defend. While documentation can be useful, in many cases it's more beneficial to terminate the employee than to continue the relationship just to document poor performance.

Severance pay. You must only pay for the time worked through the date of termination. Most states require you to issue final paychecks by a certain date after termination, so check with your state's employment agency.

Paying for unused vacation time. Not paying for accrued vacation is one of the most common mistakes employers make, and this oversight can mean civil and criminal penalties. In most states, accrued vacation is like wages and you must reimburse employees for it. Check your state's laws.

Protecting against a lawsuit. If you think an employee has a litigious nature, ask for a release of claims when you terminate the employee. The signed release bars the employee from taking legal action related to the employment and termination. For the release to be enforceable, though, you must give the employee something in exchange that he or she isn't already entitled to, such as a few weeks' pay, continued health insurance premiums, a positive letter of reference, an opportunity to resign in lieu of being terminated, or continued discounted veterinary care for a period of time.

If you decide to seek a release, ask your lawyer for a document that's enforceable in your state. One warning: Asking for a release can be risky. Some employees will interpret your gesture as a sign of guilt, so consider this option on a case-by-case basis, and only when you believe the employee's likely to sign.

Kerry M. Richard, JD, is a lawyer with Tobin, O'Connor, Ewing & Richard in Washington, D.C., and she's past president of the American Veterinary Medical Law Association. Send questions or comments to: ve@advanstar.com