In our current environment of low unemployment, you hopefully will not hear the words: “You Are Fired!” if you are an employee other than when watching an old episode of “Celebrity Apprentice”. But, with new competition in hiring, American employers do and will terminate current employees for many reasons. Both employers and employees need to understand related risks and responsibilities and protect themselves in termination situations.
Oregon is an “At Will” employment state. This generally means that either an employee or an employer may terminate an employment relationship with or without cause at any time. There is an exception to “At Will” employment if a contract of employment exists between an employee and an employer, which otherwise changes this “At Will” relationship. Clarifying whether or not an employee is “At Will” is therefore a very important distinction, which should be clearly communicated at the outset of any employment relationship.
If you are an employer, you should strongly consider: implementing a uniform employee discipline system, documenting any and all adverse employment actions with any problem employee with at least 2 witnesses present; documenting all corrective actions in the employee’s employment file, and conducting termination/exit interviews with all employees witnessed and documented in the same manner. At all times, “At Will” employees need to clearly understand they are “At Will” and may be terminated for cause or no cause in such situations regardless of your stated disciplinary system.
Creating a comprehensive Employee Handbook helps clarify all employee expectations and conditions that apply to your employee’s employment. You should also obtain your employee’s written acknowledgment regarding your Employee Handbook before they start work and periodically as it is updated over time. You should also seek legal counsel to ensure your related documentation and any Employee Handbook are drafted appropriately. Ideally, your Employee Handbook should be reviewed at least annually by an attorney to ensure its compliance with any changes in applicable state or federal law. Legal compliance in employment law matters is complex and should be handled by an attorney familiar with these issues.
A good Oregon resource for general information regarding employment law matters, required Oregon employer postings, and related employer publications can be accessed through Oregon’s Bureau of Labor and Industries (BOLI) Technical Assistance for Employers service. You can get more information here: https://www.oregon.gov/boli/TA/Pages/T_Tabooks.aspx
BOLI also has a helpline for Employers, which is free and can be reached by calling: 971-673-0824. You should consider calling BOLI prior to taking adverse employment action against an employee and/or otherwise calling your business attorney to ensure you best protect your business from retaliation, wrongful termination, discrimination, and/or other potential employee-based employment law claims.
If you are an employee, you should educate yourself about your employer’s expectations and understandings before you accept any job offer and at all times throughout your employment. In doing so, please ensure you fully read and agree to any conditions of your employment that may be memorialized in your employer’s Employee Handbook.
You should also attempt to get a general understanding of what is required by your employer to maintain its legal compliance with its employees, so you understand your rights! You can also obtain good information at BOLI’s website here: https://www.oregon.gov/boli/WHD/pages/index.aspx
Employees are affording significant legal protections by law regardless of your employment status. Consequently, if you feel your employer terminated your employment wrongfully, in retaliation for your legal conduct, or in a discriminatory manner, you should contact the Oregon State Bar for an appropriate referral to an attorney to discuss those issues. You can obtain more information here: https://www.osbar.org/public/legalinfo/1171_lrs.htm
Whether you are an employer or an employee, you should ensure you are clear about your rights and responsibilities when employee termination issues arise.