Sooner or later, all employers will experience a poor performer. Ideally, struggling employees will improve through your efforts to train, review, coach, and reward good performance. But some don’t improve, and you must ultimately grapple with terminating them. Before doing so, it’s critical to confirm that written job evaluations accurately document the individual’s performance. If you don’t, you’ve missed an opportunity to develop the primary defense against a potential wrongful discharge claim: written reviews establishing a legitimate basis for the discharge. When the records are inadequate, your best option is to postpone the termination until you can establish an accurate account of the person’s performance.

As most business owners and managers know, the federal Fair Labor Standards Act (FLSA) requires all covered employers to pay overtime compensation to any nonexempt employee who works more than 40 hours in a week. Under the FLSA, however, "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee." The definition is a bit circular (using the word employer to define employer), but note that the FLSA's interpretation is expansive in order to achieve its broad remedial purposes. So when does an individual qualify as an "employer" under the FLSA? That definition encompasses more individuals than you may think. A recent Arizona case illustrates the personal liability risk for owners and managers on FLSA claims.

The Equal Employment Opportunity Commission (EEOC) recognizes reassignment as “the reasonable accommodation of last resort.” As a result, it’s essential that, after attempting to provide other forms of reasonable accommodation, employers consider reassigning employees with disabilities before terminating them. If you fail to consider reassignment before termination, you expose yourself to liability under the Americans with Disabilities Act (ADA).