Employers often dread firing an employee almost as much as employees dread being fired. Sometimes, for whatever reason, it’s necessary to let someone go.
If done improperly, terminating an employee can reflect poorly on your company and lead to a messy legal dispute. Below, we’ve included a few tips that will help you avoid many of the legal complications that can arise when firing an employee.
Firing an “at will employee”
Illinois, like many states, follows the traditional rule of at will employment. This means that, under Illinois law, everyone is presumed to be an “at will employee.” “At will” means just that - an at will employee can be let go at the employer’s will. The employer can fire an at will employee without notice at anytime for any reason, as long as the reason is not illegal, like gender or racial discrimination.
Is there an employment contract?
If the employee has an employment contract with you, she can rebut the presumption that she’s an at will employee. Unions often negotiate such contracts with employers. In such cases, you will have to follow the termination requirements laid out in the contract. Contracts can be oral or written. However, oral contracts are often much harder to prove in court than written contracts. Illinois courts sometimes recognize “implied contracts” as well, where employee handbooks or guidelines describe policies and procedures for firing an employee.
Is it a mass layoff?
If you have 75 or more full-time employees your business is subject to additional requirements under the Illinois Worker Adjustment and Retraining Notification Act. If you’re terminating more than a third of your workforce, you must give 30 days’ advance notice. If you’re laying off 250 or more workers, you must give 60 days’ notice.
Hand over the last paycheck
In accordance with the Illinois Wage Payment and Collection Act, employers are required to provide terminated employees with their last paychecks by the next scheduled pay period. The Act also requires that you include payment for unused vacation hours in the last paycheck, if your employee was entitled to paid vacation leave.
Document the termination
You should document your reason for firing the employee. Federal and Illinois law prohibit employment discrimination based on race, religion, sex, ancestry, age, marital status, handicap, and many other factors. If you’re firing the employee for performance or disciplinary reasons, save his performance or disciplinary reports.
Under the Illinois Unemployment Insurance Act, you may be required to provide compensation to the worker for up to 26 weeks, if the worker was laid off for budgetary reasons. However, if the employee was fired for poor performance or misconduct, you probably won’t have to pay unemployment benefits.
By following these guidelines, you’ll be able to avoid many of the pitfalls that accompany employee termination. Good luck.
This post is part of FindLaw’s Legal U series. We are working to help you learn what to do in your city to cope with some of the legal problems, questions, or issues that come up in daily life. Please come back to learn more from future posts in this series.
- Find a Chicago Employment Law Attorney (FindLaw)
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- Firing an Employee - FAQ (FindLaw)
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