3 Common Mistakes to Avoid When Terminating an Employee

For many business owners, terminating an employee is something they hope they will not have to do. Unfortunately, letting employees go is just as much a part of being a business owner as hiring employees is. When an employer fires an employee, the employer must be careful to avoid creating an opportunity for the employee to sue.

Illinois is an “at-will employment” state, which means that a workers’ employment can be terminated for nearly any reason, including no reason at all. However, there are exceptions. For example, it is illegal to fire an employee on the basis of the employee’s age, race, national origin, and other characteristics protected by law. This creates a vast gray area when it comes to letting an employee go, and employers must make certain that the termination was handled in compliance with the law. There is no way to completely eliminate the risk of being sued, but avoiding these common mistakes can help business owners avoid litigation.

Mistake #1: Sloppy Recordkeeping

Sometimes, employers become overwhelmed with the demands of running a business, and they allow some duties to slip. One of these often-overlooked responsibilities is recordkeeping. For example, employers have the responsibility to track employee hours worked. When keeping track of the hours worked by employees is based on the “honor system” or is inadequately managed, employees can claim that they were not paid for the actual hours they worked.

Problems can also arise when a business fails to sufficiently document employee performance issues or instances of misconduct. Complete and accurate records of performance concerns and misbehavior could become extremely useful if an employee ever claims to have been terminated illegally.

Mistake #2: Divulging Sensitive Information

It is impossible to completely eliminate gossip in any group of people, including a team of employees. However, inappropriate discussions regarding an employee’s termination can become evidence in a discrimination lawsuit. Management and human resources should be cautious not to discuss the termination with employees who do not have a legitimate need to know.  Furthermore, business owners should be on the lookout for emails that reference terminated employees. These emails can be used as evidence in litigation. It is best to always write emails with the understanding that others may see them and to be as professional as possible.

Mistake #3: Inadequate Investigation

Serious problems can arise when an employer receives a complaint of discrimination or harassment and does not investigate it thoroughly. Employers should take all claims of misconduct seriously and take steps to determine the validity of the claim. A thorough investigation should include interviewing witnesses and preserving any evidence of the discrimination or harassment. One of the biggest mistakes an employer can make is not having clear, written anti-harassment policies and complaint procedures.

Wheaton Business Attorneys Helping Business Owners

The dedicated DuPage County business law attorneys at Stock, Carlson & Duff LLC have the experience and skill necessary to make sure your business operates within the boundaries of the law. If you have questions about terminating an employee, we can help you find the answers. Call 630-665-2500 for a confidential consultation today.

 

Sources:

https://www.score.org/resource/how-fire-employee-legally-and-fairly

https://www.forbes.com/sites/mikekappel/2017/04/05/5-tips-on-how-to-fire-an-employee-gracefully/

Are Non-Compete Agreements Legal and Valid in Illinois?

IL Business Lawyer, Illinois employment attorneyIf you are on the job hunt or have recently been hired by a new company, it is important that you review the contract given to you by your new employer. Many new hires will sign employment contracts relieved to have found a job rather than skeptical about the contract’s details. No matter how much your employer appears to explain the contract in front of you, there is always the chance that some details are being left out. One of the terms that you may overlook is a non-compete agreement hidden within the pages of text. Many employers will be upfront about this agreement to avoid any future contention while others may fail to mention what this means for you as an employee of their company. In order to avoid this confusion, you should always take the time to review your hiring contract with a reputable business attorney.

What is a Non-Compete Agreement?

Evident in the name, this contractual agreement restricts employees from working for or becoming a competitor for a set period of time. These non-compete agreements, also known as covenants not to compete (CNC), are enforced when an employee separates from their employer and the employer wants to prevent the employee from taking on a position that would be considered their competitor. Depending on the details of the agreement, these CNC regulations can last weeks, months, or even years after leaving your place of employment. This is meant to protect the company’s secrets and to keep the employee from poaching other employees to work alongside them.

In order for the non-compete agreement to be considered valid, there is particular information that must be included:

  1. The effective start date of the agreement.
  2. The reasoning for the purpose of the agreement.
  3. Specified dates in which the employee will be unable to work in a competitive sense and geographical location outlined in the agreement.
  4. Information on how the employee will be compensated for agreeing to these terms.

How Broad Can These Go?

For obvious reasons, CNC agreements must have specifications for what is considered “competition.” If these descriptions are too broad, the non-compete agreement may be deemed invalid in a court of law. In 2018, the Illinois court saw a lawsuit in which the employee claimed that the agreement was too broad to be considered valid and enforceable. The agreement in question prohibited the employee from being employed to any extent by any company that works in the same business as the employer within 50 miles of the company’s office. This included taking a position that had no relevance to their previous position, such as janitorial work. Looking at this agreement, the terms deny the individual’s ability to hold a job within a reasonable distance of their home. For this reason, the court sided with the employee stating that the agreement was much too broad to be considered valid. This is one instance in which the court took the employee’s side; however, more often than not, the employer is granted their wishes.

Call a DuPage County Covenants Not to Compete Lawyer

No one intends on having the same job forever, but some may feel as if they must stay in their position due to the details of their contract. It is not unheard of for CNC agreements to act as a tool to keep employees in their position by restricting their ability to find another job. If you feel as if your contract is unreasonable, you should have a Wheaton non-compete agreement attorney read the terms and conditions of the CNC. If the conditions are too broad or restrictive, you may be able to have the agreement thrown out by a court of law. The legal team at Stock, Carlson, Oldfield & McGrath, LLC, has worked with employers and employees to make sure their contractual non-compete agreements are valid and enforceable in Illinois. For legal help, contact us at 630-665-2500 to schedule your initial consultation.

 

Sources:

https://www.thebalancecareers.com/what-is-a-non-compete-agreement-2062045

https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2018/overreaching-covenants-not-to-compete/

https://www.investopedia.com/terms/n/noncompete-agreement.asp

 

Reduce the Chances of a Wrongful Termination Lawsuit By Following These Tips

wrongful termination, Wheaton business law attorneyIf you are a business owner, you are probably an extremely busy person. The last thing you need is to deal with an employee suing you for alleged wrongful termination. Not only are wrongful termination lawsuits stressful and time consuming, they can also be extremely expensive. The average amount received by terminated employees in a wrongful termination or employment discrimination claim is just over $37,000. Most wrongful termination claims involve an allegation that the employer breached the employment contract or that the termination somehow violated a state or federal employment law. One of the best ways to avoid a discrimination suit or wrongful termination claim is to follow proper procedures when firing employees.

Make Sure All Employees Understand the Company’s Policies

Employees should be fully aware of the company’s policies regarding employee expectations, discipline, and termination. Many employers find that writing policies and procedures in a comprehensive employee handbook is one way to ensure that employees have a written record of rules and expectations. An experienced business lawyer is a tremendously valuable resource when it comes to formulating an employee handbook that gives you the best chances of avoiding a lawsuit.

Conduct Performance Reviews and Document Everything

Unless an employee has committed an especially egregious act that necessitates an immediate termination, firing an employee should be a last resort. An employee who is underperforming should be made aware of the ways in which he or she is not meeting expectations and given guidance on how to improve. Conducting regular performance reviews is a great way to let an employee know when he or she is missing the mark. Make sure you keep documentation of the dates of these reviews, what was discussed during the reviews, and how you and supervisory staff have made efforts to help the struggling employee.

Have a Witness Present at the Termination Meeting

If you have reason to suspect that the employee will not take the termination well or that he or she will attempt to bring a discrimination or wrongful termination claim to spite you, have a witness present during the termination meeting. If you have human resources staff, make sure a member of your HR team is present. If you do not have a dedicated human resources worker, ask a higher-lever employee to sit in on the meeting. A witness will be able to corroborate your version of the events if there is an allegation that you said something you did not actually say during the meeting.

Contact a Wheaton Business Lawyer

For help drafting employment agreements, company policies, hiring practices, and employment handbooks, contact an experienced DuPage County business law attorney from Stock, Carlson & Duff LLC. We will help you formulate company policies and contracts that give you the best chances of avoid any future business litigation. If you are the subject of a wrongful termination claim, we will aggressively advocate on your behalf. Call our office at 630-665-2500 and schedule a confidential consultation.

Sources:

https://www.entrepreneur.com/article/344232

https://www.inc.com/jeff-haden/how-to-fire-an-employee.html