In New Hampshire, most employees are at will, which means that they or their employer can end the employment relationship with and without notice and/or with and without cause. There are exceptions based upon certain statutes that protect from firing due to class such as age, race, gender, disability, or actions, whistleblowing, or filing a legitimate worker’s compensation claim. When an employee has done something wrong, performed poorly, or the boss simply does not like the employee and it is not based upon a protected class or action, the employee may lose his job. Of course, an irrational or unfair decision to fire an employee, even if legal, can decrease the morale of those employees still working for the company and therefore decrease productivity. Not firing an employee that deserves to be fired can, likewise, hurt employee morale. In general, the employer should consider three concepts as to when to fire an employee: fairness, diligence, and dignity.
In determining whether the firing is fair, the decision maker should consider what has happened and respond in a measured manner. For example, the school bus driver who shows up to work drunk should be fired. However, a salesperson who is not as productive as others could benefit from shadowing a fellow sales worker in an attempt to improve his performance. While the law does not require such an option for an employee at will, the underperforming salesperson being given that opportunity to grow in the position may not only improve, but also inspire the other employees to work harder as a team to support that coworker and others. If that employee is later let go, the remaining employees will more than likely think that he was treated fairly.
The concept of diligence focuses on making sure the decision maker has all the appropriate facts and considers how this employee is being treated in comparison to others in the past. For example, if a 60-year old employee is fired for tardiness and a 25-year old employee has the same record, yet was only given a verbal warning; that may be evidence of age animus. If the decision maker was not aware of the supervisor’s age animus in recommending the firing of the older employee for tardiness, the employer could still be liable.
The last point of dignity focuses on how to fire an employee and under certain circumstances whether or not there is an alternative that may result in the employee leaving with a softer impact on his career. For example, under some very limited circumstances wherein the employee is an honest, but mediocre worker, the employee may be given a month to look for a new job while still employed. While it is generally appropriate to have a witness with the person that fires the employee to be able to confirm later what was said and to decrease the likelihood that the employee may fabricate what was said, a witness choice that embarrasses the fired employee when there are other good options is inappropriate. Disparaging the employee after he left is not only unprofessional, but can be bad for other employee morale unless the conduct of the fired employee is such that a public announcement may be appropriate. Such a decision should be made only after discussion with the company’s employment attorney.
Lastly, employees should understand that if they are fired for a work performance-related deficit, particularly when they tried to do their best, they may be entitled to unemployment compensation. Likewise, if an employee is working for a company and not being paid, the fact that he resigns as a result of not being paid may not disqualify him from unemployment benefits and that employee in that circumstance should review the New Hampshire Department of Employment Security website for further information. The unpaid employee may also have a claim against not only the company, but the executive that decided to allow him to continuing working while not paying him.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].