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Fired Up: Avoid These Mistakes When Terminating “At Will” Employees

If you own a small business, you likely do not have the luxury of employing a designated human resource manager, leaving you with the unpleasant task of terminating employees. Avoiding several key mistakes can make the situation less stressful, and help avoid future unemployment claims.

Texas is an “at will” employment state which means you can fire someone for a good reason, a bad reason, or no reason at all provided your reason is not discriminatory or unlawful. Being legally allowed to do something, however, does not necessarily make it a good idea. Unemployment benefits are designed for people who lose their jobs due to no fault of their own, but this won’t stop a disgruntled employee from filing suit even if they are terminated for cause. It is important to remember that Texas employment laws are designed to protect employees rather than employers. This means that unemployment claims are hard to defend against, and taking preventative steps now can save you from future headaches.

First, employers should be familiar with and  follow company procedures. If there is an employee manual in place, employers need to consider whether the employee has received the number of warnings that the policy manual says the employee can expect. If you have not already done so, it is important to established clear policies and defined procedures for you and your employees to follow.

Second, Termination should not occur in the heat of the moment or be a surprise to the employee. Unfortunately, a disgruntled employee can always file an unemployment claim, and the onus is on the employer to prove that termination was for good cause. Terminations that occur in the heat of the moment are often difficult to prove, and what seemed like a good reason at the time may ultimately appear flimsy in front of a jury. In order to succeed, you will need to show that the employee did something that was so egregious that he should have known he would be fired without prior warning, or that the employee had somehow been placed on prior notice that he could lose his job for such action.

Finally, be proactive. After an employee is fired, gather all records that may influence an unemployment claim. You should try to have a witness present during the conversation who can account for your actions and prevent an angry employee from falsely accusing you of wrongful behavior.  Following the termination, collect witness statements and any written records of warnings and disciplinary actions taken. While this won’t make the firing process easier, it will help you defend against an unemployment claim.

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