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Just Cause Termination

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Question:

Can you terminate a stock room employee for failing to find a piece of needed equipment that he could not locate in the drawer when we had six on hand? He said we didn’t have the part when in fact we did.

Answer:

In an at-will State, an employer can terminate an employee for a bad reason, a good reason, or a silly reason – as long as the reason isn’t against the law. In your situation, the employee displayed either incompetence or inattention to detail and could in fact be fired for this reason alone. The qualifier in this, or in any case of termination, is whether the employee is being discriminated against because of age, race, religion, gender or disability. Each of these factors is covered by protective labor laws such as Title VII of the Civil Rights Act. Specifically, if employees who are Caucasian, for instance, are not fired for the same offense but only Black men, or Hispanic women, or people over 40 are fired there might be a case of (illegal) discrimination.

The deciding factor in a discrimination case is the answer to the question: was the employee fired for just cause (i.e., not locating a part and perhaps causing a lost customer) or fired solely because of race, color, etc.? To prove a just cause case you better be able to explain who, what, when, where, and why something occurred. Do you know why this person couldn’t find the part? Were they properly trained? Can you prove they were properly trained? Was there an investigation that can show that they knew what they were supposed to do and how to do it but just “didn’t do it”?

Bottom line – do a thorough investigation and make sure you have solid documentation. Without it any reason, or no reason, terminations are more likely to become discrimination lawsuits.

Terminations are one of the most difficult aspects of Human Resources. Even when justified it can be difficult to let someone in the workforce go. When not justified they can be a risky move for any company. Strategic HR can walk you through a termination, assist with the investigation and provide a third party objective look at each case. Visit our Employee Relations page to see how we can assist you with employment issues.

 

Clark Schaefer Strategic HR's wheel of HR Services, including HR Strategy, Recruitment, Training & Development, Benefits & Compensation, Communications, Employee Relations, Recordkeeping, and Health, Safety & Security

H-1B Termination

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Question:

What is an employer’s obligation when terminating an H-1B employee?

Answer:

Terminating an H-1B employee doesn’t have to be hard as long as you follow the rules.  An interesting case came out this year on this very topic. It was in regards to a company that sponsored an H-1B professional. The petition was approved, but the company chose not to hire the foreign worker after all and terminated him. Unfortunately the employer did not offer to pay for the employee’s travel home. The foreign national paid their own way home and left the country.

Two years later USCIS learned of the termination and canceled the H-1B. USCIS then found the company liable for back wages for the entire period, despite the fact that the employee had found another job.

Had the original company:

  1. Provided written notice to the foreign national of termination,
  2. Provided written notice to USCIS of the termination as soon as possible after the termination stating the date of termination, and
  3. Provided a letter of termination to the foreign national (preferably to sign) offering to pay for the cheapest flight back to the foreign national’s home country within a reasonable amount of time…

The company would have been on the hook for nothing if they had provided these things (instead of two years worth of wages).

All three elements must be met in order for the employer to get off the hook for back wages.  Just as a point of clarification, in point 3, an employer’s obligation is to pay for a flight for the foreign national employee within a “reasonable” amount off-time, not necessarily the next flight out to their home country. This will allow the employer to save money on the ticket and the foreign national time to pack and settle issues such as lease agreements or car payments.

An important side note is that the offer of payment for travel does not extend to the family of the employee. Also, the offer of travel expenses need not be accepted by the foreign national. Therefore it is best to have them sign a letter of termination that notes whether the foreign national accepts or rejects the offer to pay for travel. This is the safest course given this decision.

Thank you to Christopher Pogue with Hammond Law Group for this response.  This advice is intended for general information purposes, and should not be relied upon in individual cases. Please contact attorney Christopher Pogue with the Hammond Law Group at (513) 549-4420 or cmp@hammondlawgroup.com for legal analysis of specific situations.

NOTE:  There is no charge for an initial consultation with Christopher Pogue if you reference that you were referred by Strategic HR

Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.