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Following the law when firing problem employees

Paul Goeringer for Progressive Forage Published on 31 August 2018
Termination Notice

Making sure all your bases are covered in case of a discriminatory claim will protect your farm and prevent a lawsuit down the road.

Adding employees into a farming operation can often be a challenge. Did you pick a good hand or someone who will cause you grief? You may end up needing to terminate an employee, which is never a simple process.

If it becomes necessary to terminate an employee, remember to pay them for any unpaid wages and unpaid leave (depending on company policy and your state), get keys and equipment returned to you, and change all applicable employee passwords.

One of the most important duties you will have as an employer is to evaluate employee performance. Letting an employee know how they are performing can encourage the employee to perform at a high level, and letting the employee know they have fallen short can help reinforce expectations.

You should attempt to do evaluations in a positive manner and keep a written record of the evaluations to help document employees’ job performance. You need to keep records showing how you evaluated employee performance and how you disciplined poorly performing employees. Doing this will help limit claims a termination was for a discriminatory reason.

After evaluations, discipline poor-performing employees before terminating anyone. Letting the employee know early on how their performance is inappropriate or inadequate, both verbally and in writing, gives the employee an opportunity to correct unacceptable behavior. If the employee’s performance does not improve, the employer can consider suspending the employee without pay or even terminating the employee.

For example, a custom hay operation has an employee, Steve, who is habitually late to work every morning. Pete, the owner, should document that Steve is late and explain to Steve he cannot arrive late to work anymore. If Steve arrives to work late the next day, then Pete could send Steve home for the day without pay. If Steve arrives late again, then Pete could terminate Steve.

When disciplining an employee, keep written records in the employee’s file. Good records on all matters related to your employees will help prove terminating an employee was warranted.

Before termination

When terminating an employee, remember anti-discrimination laws still apply. State anti-discrimination laws can vary as to classifications (races, sex, religion, etc.), which are protected traits. The Civil Rights Act of 1964, a federal law, states employment laws protect against discrimination during hiring, employment and termination.

You cannot terminate an employee based on race, age, sex, disability or religion. This is why documentation and fairness in disciplinary actions are important and help to verify you are terminating an employee for reasons other than discrimination. Pete could not terminate Steve based on his race or religion, for example, but Pete could terminate Steve for violating the terms of employment.

When terminating an employee, the next issue to consider is at-will employment versus contract employment. At-will employment is usually employment without a contract, which may be terminated at any time without cause by either the employer or the employee.

At-will employment is the default rule in all 50 states except Montana. One exception to this rule is termination for a discriminatory purpose; you may terminate an at-will employee for any reason except race, age, sex, disability and religion.

An exception to the at-will rule would be when termination violates public policy. For example, an employer orders an employee to dump pesticides into a creek in violation of state law. The employee refuses to do this and is fired. This would be an example of termination which violates public policy and where terminating at-will employment would not be allowed.

An employment contract can limit when you can discharge employees. While these contracts can be useful in retaining valued employees such as a farm manager, you need to keep in mind your ability to terminate employees will be limited.

If the employment contract states, for example, an employee can only be fired for violations of the contract, then the employee cannot be fired for any other reason.

After you have documented the problems with an employee and given the employee an opportunity to correct the problems, then you can consider termination. You should terminate the employee in a way which will not embarrass the employee or distract other employees. Be clear with the employee as to the reason for termination.

After termination

Once terminated, the employee is entitled to unpaid wages. Retaining those wages is never advisable. If the employee having damaged equipment, buildings, etc., is the reason for termination, then consult an attorney on how best to collect for damages on the equipment.

The other issue to consider is vacation and other accrued leave. Many states have laws requiring you to pay the terminated employee for unused leave unless the company has a policy or a contract term which does not require you to do so. While hourly employees on your farm may not earn leave, this can be an issue if the terminated employee is a manager.

Finally, take steps to get property returned to you. If the terminated employee has company equipment (phone, truck, etc.), make arrangements at the time of termination to retrieve your property. Remove the employee from any bank accounts they have signing authority on. Have the employee return any keys.

Change any passwords (bank accounts, social media, etc.) to which the employee may have access; doing this will restrict the terminated employee’s ability to retaliate. Do you want to see your social media accounts showing statements against you or your family? Do you want to be locked out of bank accounts?

Adding employees can be a challenge, and terminating problem employees may require you to follow certain steps to prevent a lawsuit. Taking steps to protect your farm operation when terminating employees can save you trouble down the road.  end mark

ILLUSTRATION: Illustration by Corey Lewis.

This should not be construed as legal advice.

Paul Goeringer
  • Paul Goeringer

  • Extension Legal Specialist
  • University of Maryland
  • Email Paul Goeringer

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