Ask the legal expert: firing an underperforming manager who falsified credential

Attorney John Durso, Ungaretti & Harris LLP

We've discovered one of our top managers falsified some credentials on her resume. She also has been less than we expected performance-wise (though nothing criminal). How can we legally proceed to terminate her employment?

Lying in a resume and performance problems are legitimate reasons for terminating an employee. If the employment is “at-will,” as long as the termination is based on legitimate, nondiscriminatory reasons, the termination should be legal. It is illegal to terminate an employee based on his or her status under any protected category, such as race, color, religion, sex, national origin, disability or age.

The key to reducing the risk of litigation is to document the reasons leading up to the termination. If you want to terminate an employee for falsifying his or her resume, follow your established procedure for taking disciplinary action and always document the disciplinary action and notice to the employee that such action is being taken.
Further, especially when termination is performance based, it is good practice to provide reviews and document your evaluation and meetings regarding the employee's performance.

Documentation that the employee failed to improve his or her performance despite warning and feedback could be critical evidence in any wrongful termination or employment discrimination dispute. Further, make sure to correctly follow your termination procedure policy, if any.

If an employment is not “at-will” and a contract exists with the employee, you must review the terms of the contract regarding termination prior to firing the employee. Carefully preparing documentation and reviewing any contracts will minimize exposure to liability for the termination.

From the September 2010 Issue of McKnight's Long Term Care News »