Helping Employers With Employee Disciplinary Measures

For Employees

At Gould & Berg, LLP, our attorneys often represent employees who have been the subject of a counseling memorandum, poor performance review, performance improvement plan, or some form of disciplinary action including suspension and termination. Tailoring the employee's response to any of these actions requires significant insight into the particular circumstances and development of a strategy for how to defend or address the issues.

In many instances, such as where an employee has a contract, tenure or permanent status in certain civil service positions, the employee may be entitled to due process prior to the disciplinary action becoming final or the employee may have a legal claim against their employer arising out of the adverse action taken against them. Often, employees facing discipline or termination are offered a severance package which contains legally binding provisions such as a release of all claims against the employer, confidentiality, non-competition, non-solicitation, and no future re-employment clauses. It is critical to contact an experienced attorney at the earliest possible point, so that a comprehensive approach can be developed and any responsive action can be tairlored to your individual circumstances.

For Employers

Employers in all types and sizes of businesses need to engage in disciplinary or counseling measures against their employees, sometimes progressive in nature. We recognize that while some situations may warrant only a verbal warning there are others that require more serious disciplinary actions including written warnings, performance improvement plans, suspension and even termination of employment.

Regardless of which course of disciplinary action you choose as an employer, there are legal and practical issues that need addressing before any action is taken.

For example, is there a contractual relationship with the employee or an employee manual such that disciplinary action is governed by the terms of the contract or manual? Is the employee a member of a union, and if so what is the disciplinary process that needs to be followed in the collective bargaining agreement? Is the employee entitled to any civil service or other procedural protections prior to the imposition of discipline? And perhaps most importantly, will the disciplinary action spark a legal claim by the employee for some form of discriminatory/unequal treatment or retaliation?

An employment law attorney - such as those at Gould & Berg, LLP who have handled such matters on behalf of employers - can help you make the right decisions when it comes to determining how best to resolve problems with an employee. One of our experienced attorneys can offer advice on the law, including a practical discussion as to appropriate procedures, and whether any civil service, contractual, or tenure provisions are involved.

Protecting Your Interests When You Need To Fire An Employee

In certain cases, employers will need to terminate an employee's position. It may be due to serious measures such as fraud or acts that damage long-term company relationships or harm the company's bottom line. It may be due to other factors such as a pattern of poor performance or inappropriate behavior in the workplace or toward other employees, clients or customers. It might also be for purposes of budget savings or to reorganize a department or business.

In most situations, employees are "at will." This generally means an employee can be terminated for any reason as long as it is not violative of state or federal law. Other exceptions to at-will employment can include if the employee is a permanent civil servant, tenured professional, has a contract, or members of a union.

In assessing the termination decision and if there is a risk it will expose your business to any potential legal claims, you may want to offer a severance agreement to a terminated employee which will provide a release of claims against the employer. Furthermore, an experienced employment law attorney can help you determine whether certain procedures need to be followed when it comes to firing an employee all while making sure your interests are protected.

At Gould & Berg, we can help you make and implement these determinations.

Individualized Solutions

We do not treat all situations as if they are the same. We will not examine your case in a piecemeal fashion. Rather we will look at the specific circumstances for each issue involved, discuss your goals and preferred course of conduct, and also consider the bigger picture to find the best and most practical solution for you.

Let us help you. Call 914-397-1050 or send our lawyers an email today. Learn more about our background and credentials.