What criteria must employers consider in termination for failure to perform job duties?

The termination of a senior employee with a good performance record is difficult to swallow, but is not illegal per se. The employee's reports of difficulties leading up to the termination will give the employer a reason to terminate, which is not required by law.

The main question you need to answer is whether the employee attempted to get any accommodation prior to termination, or whether an illegal reason is also present. The employer does not have to put an employee on FMLA. You may need to discuss this with an employment lawyer near you.

You can select one at www.oelasmart.net/directory

posted by Bruce Elfvin  |  Nov 5, 2010 09:29 AM [EST]

This response is not meant to: 1) contain my signature; 2) contain legal advice; 3) create an attorney/client relationship; or 4) guarantee confidentiality.

If the employee is at-will, the employer need not use ANY criteria for termination. (At-will employment is discussed in great detail elsewhere in MEL. There are some narrow exceptions, such as discrimination due to race, age, religion etc.)

The employer is not compelled to give any reason or recommend corrective actions even though the record up to that point was exemplary. Neither must the employer offer FMLA leave if they are not on notice that the employee has a serious condition which precludes the employee from working.

The same goes generally for disability. An "interactive" communication with the employer is required concerning the disability and the "reasonable accomodation" the employee is seeking.

So, whether the employer unlawfully did not offer FMLA leave or disability accomodation will first depend on whether the employee notified them of the problem.

posted by Neil Rubin  |  Nov 5, 2010 08:56 AM [EST]