An employee has been spending 80% of her time on a non profitable account. She was spoken to about it a couple times. The company wants to terminate her based on her performance and outsource that unproductive account to a third party. Can the employee sue the company for this termination? Or do they have to write her up ad give her time to become a performer? Please advice.
Administrative Law Lawyer
Poor employee performance is among the most justifiable and least vulnerable reasons for any employer to terminate any employee.
If the employee is not represented by a union with a collective bargaining agreement in place that limits the employer's rights and powers, and if the employee does not have an employment contract between the employee and the employer, then the employee is an "at will" employee. "At will" employees can be terminated for any reason -- or no reason -- at any time so long as the termination is not based on employer bias for race, religion, national origin, etc.
No prior warnings or opportunities to correct are required unless the employer has previously made a binding statement that all such employees will not be fired without prior warnings and second chances to correct failures of performance.
If you are going to exercise employer at will powers, the best means is to make no statement of reason for the decision. There is no purpose or benefit to a statement of reason and it can only complicate and make the situation more difficult. It takes some self-discipline and presence of mind, but make no statement of reason or explanation. Remove the employee permanently from the premises at the time of the termination. Have final accurate paycheck in hand. Offer to confirm dates and nature of employment -- but nothing more -- to any other potential employers who may inquire. of you. That's it.
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