Solo and Small Firm

The Practitioner Spring 2014, Volume 20, Issue 2

Risky Terminations and How to Avoid Them

By Cynthia Elkins

Cynthia Elkins, Principal of Elkins Employment Law, whose practice provides representation to private sector employers on their personnel and employment law matters including litigation defense, compliance and best practices.

Often an employer wishes to terminate an employee but the fear of being sued will delay the decision in the hopes that the employee will resign. However, a resignation in these circumstances is unlikely and does not prevent litigation as a claim of "Constructive Discharge"1 could be filed. Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. For this reason, it is imperative that employers review their personnel decisions carefully to evaluate the risks involved and how to avoid them.

Specific "risky" terminations include those where the employees:

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