The Three Step Audit Before Discharing an Employee

Firing an employee in Puerto Rico for misconduct has legal consequences.  The discharge may be deemed wrongful, discriminatory, retaliatory or in violation of some other law. You need to consider both local and federal labor & employment issues. Fines can be steep and in some cases may require job reinstatement. Before you discharge an individual, reflect on the following issues (and get an employment attorney).  This self-audit may avoid  future wrongful discharge claims.

Why are you are terminating the worker? If it’s for disciplinary reasons or violation of some policy, ask yourself:

1. Can you prove that the act was committed by the worker?
2. Is the disciplinary measure fair (and consistently applied to others)?
3. Regardless of (1) and (2) is  the worker  protected by a specific law such as age, sex, disability, workers compensation, pregnancy, color, political views, religion, retaliation and if he/she is,  can you show  that the condition protected plays no role in the decision to terminate?

Here are some key questions you need address:

• Is the applicable policy or rule breached in  written form?
• Have you provided  the worker with a copy of the policy?
• Do you have evidence of having provided a copy (such as a signed acknowledgment form)?
• Is the violation contained within the rule or policy? What is the penalty if any?
• Do you have a specific disciplinary process? Are you follow it?
• How serious is the  breach of conduct? Is it a first offense? A discharge for a first offense is unjustified unless it’s of a serious nature and puts the business at risk.
• Have you calculated the amount of the indemnity under Puerto Rico’s Wrongful Discharge Act No. 80 ? It is a wise idea to know what is your legal exposure under the law in case you are not able to prevail in a wrongful discharge claim.

If you are discharging a worker for performance, the process is similar. How clear were the objectives and goals? Were they reasonable? Can you show that the worker was aware of them?  Are they in written form?  Was the employee given ample opportunity and support to reach these goals?

Is the Worker protected by a specific law? In Puerto Rico, employers can discharge workers at will but must pay an indemnity if the discharge is without cause. However the employer must be careful not to breach other employment laws that prohibit employment discharges for a specified reason. Example of these laws include firing a person for his/her age, color, gender, national origin, religious beliefs,  disability, retaliation and enjoying protected leaves.  While a  discharge for cause may be an adequate defense in many cases, a initial analysis of the applicability  of these laws is a wise precautionary measure. Typical issues you might consider include:

• Is the worker of a foreign nationality, black, impaired, and professes a particular religion?
• Is the worker currently under a particular leave?
• Is the worker older than most? Older than 40?
• Is the worker the only woman? Has she been harassed?
• Is the worker disabled or perceived to be disabled?
• Is the worker a victim or perceived to be a victim of domestic violence?
• Is the worker currently under a protected leave such as pregnancy, Family-Medical, jury, military or workers compensation?
• Is there any protected condition that the worker may invoke to sidetrack the case from a simple discharge to a major discrimination claim?

How are you doing the termination?  There is no specific law stating how you should fire a worker and over the years, I’ve seen all sorts of procedures. From employers providing structured exit interviews and outplacement services to a simple -“you are fired” -outburst.  While there is no guarantee, I would suggest that the more diplomacy you use, the less likely you will get sued.