Before firing an employee, employers should analyze the potential for a lawsuit or administrative claim.

Date: March 2012

A common belief among many employers is that, because Arizona is an at-will employment state (i.e., in the absence of a contract, either party can break the relationship without cause), they can fire an employee without justification.

That is a risky position to take; in many cases, if you cannot articulate a good reason for the termination, you may face a wrongful termination lawsuit or administrative claim.

  • Thus, before firing an employee, employers would be wise to analyze whether a jury would agree that the termination was justified. To limit potential exposure of employee damages stemming from wrongful termination, you should first consider the following factors:​​
  • How long has the employee been with your company or organization?
  • Is there an employment contract? If there is, what does it say?
  • Can you articulate the reasons for termination?
  • Are the grounds for termination consistent with the provisions of your employee manual or employment policies?
  • Has the policy manual been changed recently?
  • Do you have evidence to support your decision?
  • Have you documented the events or employee conduct that led to your decision?
  • Did you ask the employee for an explanation?
  • Is the decision consistent with prior performance evaluations?
  • Are there circumstances in the employee’s life that make the termination decision inappropriate?
  • How have you responded to similar conduct by other employees?
  • Is your action regarding this employee consistent with actions taken against employees in similar situations?
  • Has the employee made allegations of company wrongdoing?
  • Is the employee a member of a protected category?
  • Does the employee have a serious health condition or a disability?
  • Is the employee properly classified as salaried (versus hourly wage)?
  • Is the employee’s cooperation necessary to the defense of claims in pending or threatened litigation by others?
  • Have you considered alternatives to termination (e.g., resignation, transfer, demotion, final warning, suspension)?
  • In general, would the termination be viewed as fair by a third party who knew both sides of the issue?

A detailed analysis of these factors should assist in reducing liability or in assessing the risk of a lawsuit or administrative claim resulting from an employee termination.​

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An attorney with litigation experience, a comprehensive understanding of business and employment law, and the right training can make all the difference when it comes to protecting the rights of both the employer and the employee. If you have questions or problems in this area, call Barton Law at 602.753.9147.

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