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How to handle a problem employee

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So you have an employee that is a problem. Regardless of whether the employee has been a problem for some time or has only recently become a big problem in the workplace, what are your options? What are your responsibilities as an employer?

Here are some quick answers to common questions.

Can I fire an employee that is a problem without giving him any reason?

If you have an employee that is a problem at work for one reason or another and you have no employment contract with that employee, Washington State law allows you to terminate (or fire) that employee for any reason or no reason at all.

This is because Washington is an “at-will” employment state. This means that you do not usually have to give a reason for terminating an employee, and you can fire an employee for any reason, so long as that reason is not discriminatory.

A prohibited reason that would qualify as discriminatory for firing an employee would be if you fire him or her based on race, creed, color, national origin, sex, marital status, age (40+), sexual orientation (including gender identity), filing a complaint or advocating for rights, disability, or HIV/AIDS or Hepatitis C status.

If you have an employment contract with an employee that you want to terminate, you must review that contract and follow the disciplinary procedures in that contract, if any. Be aware that any time there is a union contract involved you must follow all the requirements in that union contract prior to terminating an employee.

Do I have to give an employee warnings before I fire them?

If an employee does not have a contract and is not a member of the union you do not need to give them any warnings before you terminate them from their position.

However, it is wise to give an employee a warning if you think there is any reason the employee might believe they are being fired for a discriminatory purpose. Not providing them with a warning is especially problematic if, in the past, you have given them positive evaluations for their performance.

What if the employee is a member of a union?

As stated above, if the employee is a member of a union you must follow the processes in the union contract prior to terminating an employee. As an employee, you must be aware of the procedures in your union contract or in any contract that you have with your employer.

If you are an employee that believes you have been unlawfully terminated and you do not follow the procedures in your contract, whether it is union or otherwise, you could be waiving your right to any claim later on. As an employer, be aware that if you have fired an employee and that employee’s contract requires him or her to file a complaint according to a specific dispute resolution process, the employee may have waived their right to make any claims against you if they do not follow that procedure.

I have an employee that is harassing her disabled coworker. Can I fire her without explanation? Do I have to fire her?

You certainly can fire her without explanation, but you do not have to. However, if you have an employee that is creating a hostile work environment, you must do something to stop the behavior. You have a responsibility to your other employees to ensure the work environment is safe and not hostile.

To protect yourself, always document your employment decisions so that you have a record to look back on if one of your employees later files a complaint.

Whether you have an employment contract or not, it is always recommended to seek the advice of an attorney if you have any questions about what you need to do to terminate an employee. It is much less expensive to properly terminate an employee than to try and defend against an unlawful termination claim.

Kristin Ferrera is a litigation attorney with the Wenatchee law firm of Jeffers, Danielson, Sonn & Aylward, PS. Her practice areas include complex civil litigation, employment law, federal Indian law, construction litigation and family law.

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