EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.
Q: My company is considering firing an employee. He does good work, but is always complaining about one thing or another. Can we fire him for that reason?
A: Several readers are now asking themselves whether they complain too much at work. My answer may give them little relief. In Oklahoma, most workers are classified as “at will” employees, and may be terminated without cause. But all employees, even serial complainers, have certain protections under state and federal law. Before firing any employee, your company should consult an attorney to make sure the termination complies with the law and that you are honoring his rights as you send him on his way.
Employees cannot be fired because of certain factors like race, gender, age and disability. An employee can’t be terminated in retaliation for reporting the company or a supervisor for wrongful behavior. Determining whether your company is in compliance with these restrictions is extremely fact sensitive. I will leave to another time a full discussion of the wrong reasons for terminating an employee. For now, make sure your reasons for terminating the employee are sound by asking an attorney to review the matter before you take action. Also be sure that you are not terminating him because he is complaining about matters that fall within a protected area, such as sexual harassment.
An employee who is being terminated has rights regarding the way in which he is treated as he is ushered out the door. He is entitled to be paid his earned wages in full on the next regular payday. You may pay him through your regular procedure unless he requests that he receive his paycheck by certified mail. If your company has an employee handbook, it may grant employees other rights upon termination. You must be careful to comply.
Employers are entitled to withhold certain amounts from an employee’s final paycheck. If there is a bona fide disagreement about whether the wages are owed, the employer may hold the disputed wages. But don’t play games here. Only withhold funds if you actually and honestly believe that the employee is not owed the funds based on a factual or legal dispute. If you fail to pay wages that turn out to be owed, the company can be liable for additional damages in the amount of 2 percent of the unpaid wages for each day payment is withheld. Fire with care.
MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to firstname.lastname@example.org.