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Firing Right — Part 3

Denise Rondini August 22, 2012

Whether you are firing an employee for non-performance or for conduct-related issues, you need to be aware of the legal issues surrounding termination.

By Denise L. Rondini, Executive Editor

drondini@randallreilly.com

The good news for most truck dealers when it comes to terminating an employee is that absent a contract of employment for a defined period of time, or restricting the reasons they can be terminated and barring union affiliation, most employees working in truck dealers are employed at will.

 “This means the employment relationship can be terminated by the employer or the employee with or without notice for any reason or for no reason,” says Chris Durham, attorney with Duane Morris.

However, there are a number of laws that govern employee termination that you need to keep in mind. The most important ones are: anti-discrimination laws, anti-retaliation laws and whistle-blower laws and national labor relations laws, Durham says.

Anti-discrimination laws can be found at the federal, state and sometimes even at the local level. These laws prohibit employers from discriminating against employees on the basis of the employee’s membership in a protected class.

“Protected classes at the federal level include race, gender, religion and national origin under Title 7,” Durham says. Age discrimination is prohibited under the Age Discrimination Employment Act, disability under the Americans With Disabilities Act, military status under the Uniform Service Employment & Re-Employment Rights Act and genetic information under the Genetic Information Non-Discrimination Act.

“Some states and localities provide even greater protection for employees, protecting them from discrimination, for example, on the basis of sexual orientation or gender identity,” Durham says.

“Dealers need to be aware of these restrictions on their ability to take action against employees to protect themselves against discrimination claims and ensure compliance with the law,” he adds.

Two things dealers can do to ensure they do not run afoul of these laws is to publish and enforce anti-discrimination, anti-harassment and equal employment opportunity policies and also to ensure that managers —  and where appropriate employees — are periodically trained on these subjects.

 “The second category is anti-retaliation and whistle-blower laws,” Durham says. “These laws prohibit terminating or taking adverse action against an employee because he has engaged in conduct opposing an employer’s less than lawful activity.”

 Many of the anti-discrimination laws also have an anti-retaliation component to them. “For example, Title 7 prohibits an employer from terminating and employee because the employee filed a complaint of race discrimination or sexual harassment,” he says.

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