Employee Terminations

Overview

Firing an employee is unpleasant, even if it may be necessary for the organization. It takes preparation, planning, and hard work, and real dangers lurk when procedural safeguards are forgotten or ignored.

If termination appears inevitable, document and communicate the problems and familiarize yourself with the procedures that will need to be followed. Local government staff and officials are strongly encouraged to ask questions and contact the agency's legal counsel before beginning the termination process.

"At-Will" Employment

In Washington, many governmental employment relationships are "at-will" – that is, a person's employment continues at the will or pleasure of the employer. Absent the requirements of civil service or collective bargaining agreements, discussed later, a public employee does not have a property interest in their employment, and that employment can be terminated without due process, or “at-will,” without notice, statement of cause, or hearing (Yantsin v. Aberdeen (1959), Nostrand v. Little (1961), Halliburton v. Huntington (1978), and Gaar v. King County (1972)).

Who Can Terminate the Employee?

For cities and towns, the authority to terminate is vested with the mayor (RCW 35.23.021, 35.27.070, and 35A.12.090) under the mayor-council form of government, or the city manager (RCW 35.18.060(2) and 35A.13.080(2)) under the council-manager form of government, unless delegated.

In county government, the elected officials make the employment decisions for their own departments (RCW 36.16.070 and Halliburton v. Huntington (1978)).

Upon What Grounds May an Employee be Terminated?

If employment is "at-will," what grounds will support termination? The answer is suggested by a 1984 state supreme court decision, Thompson v. St. Regis Paper Co., which stated that the rule governing termination of at-will employees is generally that employers can discharge employees "for no cause, good cause or even cause morally wrong without fear of liability."

On the other hand, if an employee is not "at-will," the reasons that would support their termination may be far more restricted. For example, if an employee is covered by civil service, termination may be only "for cause," such as for incompetency, dishonesty, mental unfitness, or felony conviction (RCW 41.08.080-.090, 41.12.080-.090, and 41.14.110-.120). If an employee is covered by a collective bargaining agreement, depending upon the language of the agreement itself, discharge may be permitted only "for cause," and then only after "progressive discipline" has been followed. Progressive discipline envisions that, for less serious offenses, oral and written warnings are given, followed by suspension, before discharge is permitted.

Personnel policies restricting terminations to "for cause only" or placing other restrictions or limitations on the termination process are legally questionable because they could violate the separation of powers doctrine. For example, if a city council, the legislative branch of a city, adopts a policy limiting terminations to "for cause," it has arguably circumvented the mayor's or city manager's authority to terminate an employee "at-will." However, if such a policy is adopted and is known to and relied upon by an employee, then their termination will be restricted by that policy (Thompson v. St. Regis Paper Co. (1984) and Bulman v. Safeway, Inc. (2001)).

What are the Grounds for Which an Employee May Not Be Terminated?

As indicated above, if an employee is not "at-will," but is instead covered by civil service or a collective bargaining agreement, they may be terminated only according to the requirements of the civil service statutes or the applicable labor agreement. However, some restrictions apply across the board, regardless of the employee's status. The following are some of the more common restrictions placed on employment actions.

The Termination May Not Be Based on the Employee's Age, Sex, Marital Status, or Other Discriminatory Reasons

State law prohibits discrimination in employment, including discrimination as a motivating factor in the discharge of employees. RCW 49.60.180(2) makes it an unfair practice for an employer:

To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

Thus, for example, an employer may not discharge a person because they have become "too old" (Carle v. McChord Credit Union (1992)). Age discrimination is also prohibited under the federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) Nor may an employer make an employee's race or gender a determining factor in reaching the decision to terminate (Capers v. Bon Marche (1998) and Mackay v. Acorn Custom Cabinetry (1995)).

The state court of appeals has upheld the right of a pregnant employee to sue an employer, both under statute and at common law, if she has had her employment terminated because of her pregnancy (RCW 49.60.180(2); WAC 162-30-020; 42 U.S.C. §2000e(e)(k), and, generally, United Auto Works v. Johnson Controls).

It is also unlawful to terminate a person based upon their physical disability, either under state law (RCW 49.60.180(2); Clarke v. Shoreline School Dist. (1986)), the federal Americans with Disabilities Act (ADA) (42 U.S.C. § 12112 and 29 C.F.R. § 1630.4(b), School Board of Nassau County v. Arline (1987)). Also see DePaoli v. Abbott Lab (7th Cir. 1998) – worker disabled but not "qualified."

An employer may not discharge an employee because of union activity (RCW 41.56.140 and Public Employees v. Community College (1982)) and, since government employees have the statutory right to engage in political activities, it is likely that employees may not be terminated because of political activities in most cases (RCW 41.06.250(2)). Similarly, a government employer is prohibited from taking a negative employment action against a civil service employee if that employee has failed or refused to engage in political activity (RCW 41.08.160, 41.12.160, and 41.14.190).

Civil Service Employees May Only Be Discharged "for Cause"

Civil service employees, typically those employed in police, sheriff, and fire departments, are not "at-will" employees. They may only be discharged "for cause" with a written accusation filed by the appointing authority (mayor, city manager, or sheriff), a citizen, or a taxpayer (RCW 41.08.080-.090, 41.12.080-.090, and 41.14.110-.120). The term "for cause" is defined by statute to include: incompetency; dishonesty; immoral conduct; insubordination; mental or physical unfitness; drunkenness or use of habit forming drugs, to the extent it interferes with efficiency; conviction of a felony or a misdemeanor involving moral turpitude; or any other act sufficient to show unfitness for public employment.

In addition to limiting why an employee may be terminated, civil service also limits how a termination can be completed. If a civil service employee disagrees with the termination action, they may submit a written demand to the civil service commission for an investigation (RCW 41.08.090, 41.12.090, and 41.14.120). The commission schedules a public hearing for an investigation to determine whether the termination was "for just cause." After the hearing, the commission may affirm the employment action, allowing the termination to stand, reverse the action and reinstate the employee, or modify the action, such as by suspending or demoting the employee.

Collective Bargaining Agreements May Modify the Termination Process

Public employees – at least those employed by cities, towns, and counties – are authorized to organize, designate representatives, and enter into collective bargaining agreements with their employers (RCW 41.56.020 and 41.56.040).

While not required, collective bargaining agreements typically address the justification and process for the discipline and termination of covered employees. In most instances, terminations are only allowed for "just cause," and, even then, only after progressive discipline has been applied. (Progressive discipline usually requires that oral and written reprimands be used before suspension and termination may occur, the idea being that an employee should be given an opportunity to improve their job performance before termination).

Similar to the civil service process, if a union employee disagrees with an employment action, the employee or the employee's union may "grieve" the action, taking it ultimately to arbitration for decision. An arbiter, like the civil service commission, may sustain or reverse the employment action, or modify the level of action imposed (for example, order a suspension instead of a termination).

Employee Policies May Alter Ability to Terminate

An employer's ability to terminate an employee may be altered and restricted if the employer adopts a policy limiting terminations to, for example, "for cause only," if the policy is known to and relied upon by the employee.

Employer May Not Retaliate Against Whistleblowers

A "whistleblower" is an employee who, in good faith, reports alleged improper governmental action. See chapter 42.41 RCW. An employer may not engage in workplace reprisal or retaliatory action, such as dismissal, against a whistleblowing employee (RCW 42.41.040, Wilson v. City of Monroe (1997), Bott v. Rockwell Int'l (1996), and Bayless v. Community College Dist (1996)).

Terminations Based on Violations of Public Policy

The courts have ordered the reinstatement of terminated employees, or have found that employees have rights of action against employers, when terminations violated "public policy."

For example, an employer is prohibited from terminating an employee because they refuse to do an illegal act (Lins v. Children's Discovery Ctrs (1999)). Other examples are noted in Washington court decisions, including Dicomes v. State (1989), but this prohibition is also based on cases from other states including where the discharge was due to the employee performing a public duty or obligation, such as being absent while serving on jury duty, and where the termination was based on the employee exercising a legal right or privilege, such as by pursuing a worker's compensation claim.

In one case, an armored truck driver was discharged when he left his vehicle to aid a woman being threatened by an armed bank robber; the court found that the discharge violated the public policy of encouraging heroic conduct (Gardner v. Loomis Armored (1996)).

It would also be a violation of public policy to fire employees for filing complaints under the Washington Industrial Safety and Health Act (WISHA), community right-to-know complaints under chapter 49.70 RCW, minimum wage claims under chapter 49.46 RCW, or family and medical leave claims under chapter 50A.40 RCW.

It is also unlawful for an employer to discharge an employee because of certain garnishments (RCW 6.27.170) and wage assignments (RCW 9.94A.7705(7), 26.18.110(8), 26.23.080, and 74.20A.230).

The Process of Saying "Goodbye"

Once the decision has been made that an employee should be terminated, and the person who is authorized to discharge the employee is satisfied that the termination is legally supported, what procedural steps should be followed? This section reviews the major steps that should be considered.

Develop a Road Map that Supports the Employment Decision and Plots the Course of the Action

If an employee is going to be terminated for poor performance, their personnel file should include performance evaluations and/or other indications that performance was not satisfactory. If the termination is based on a violation of work rules, are there reports to support that the rules were known to the employee and were violated? If a 60-year-old minority worker with 25 years of experience is going to be terminated, does the mayor or city manager have justification for the action that will withstand an allegation that the termination was based on age or race? Whatever the reason for the termination, are there materials or other evidence available to support the decision, in the event a challenge is brought?

The mayor, city manager, commissioners, or other officers vested with authority to terminate should gather and review any employment-related policies, collective bargaining agreements, civil service rules, employee handbooks, and other pertinent information to assure knowledge of the process, if any, that must be followed. Does the employee have a right to a hearing to challenge the termination?

Investigatory Interviews and Pre-Termination Hearings ("Weingarten" Rights)

Sometimes an investigation is required before any final employment action may be taken. For example, if a sexual harassment complaint has been filed, the employer will want to review the allegations and gather information from both the accuser and the employee suspected of the harassment. The rules surrounding investigatory interview different for at-will employees and employees who are not at-will.

Absent a local policy to the contrary, at-will employees do not have a right to have a representative present during an investigatory interview. Further, while at-will employees do not have a right to a pre-termination hearing, they may be entitled to a name-clearing hearing, which is explored further down on this page.

In the public sector, employees who are not at-will are civil service employees and those covered by collective bargaining agreements or personnel policies that provide for termination only "for cause." Union employees have a right to union representation during any investigatory interview, referred to as the Weingarten right (a right first recognized in National Labor Relations Board v. J. Weingarten, Inc. (1975)), if the interview could reasonably lead to discipline or termination. Weingarten rights are only available during investigatory interviews. While the employee has the right to have union representation during the interview, the onus is on them to make this request; the employer is not required to inform the employee of this right.

For public employees covered by collective bargaining agreements, Washington’s Public Employment Relations Commission (PERC) has added additional requirements employers must adhere to when employees invoke their Weingarten rights. In a 2010 decision involving the Omak School District, PERC ruled that when an employee makes a valid request for union representation at an investigatory interview, an employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the choice of continuing the interview unrepresented or forgoing the interview completely (and with it, any benefit the interview might have conferred upon the employee).

An employer may not continue an interview with an unrepresented employee who has asserted their Weingarten rights unless the employee voluntarily agrees to continue unrepresented (Omak School District, Decision 10761-A (PECB, 2010)). In addition, PERC has established that, "[w]hen two union officials are equally available to serve as a Weingarten representative…the decision as to who will serve is properly decided by the union officials, unless the employer can establish special circumstances." See City of Tacoma, Decision 11064 (PECB, 2011), aff’d, Decision 11064-A (PECB 2012) (quoting Anheuser-Busch Inc. v. National Labor Relations Board (2003)).

What if the Investigation Could Result in Possible Criminal Action? The "Garrity" Rule

Historically, employees under investigation for possible criminal behavior were sometimes placed in a difficult legal position: should they cooperate fully and answer all questions asked, thereby possibly providing incriminating evidence, or should they refuse to cooperate, thereby placing their jobs at risk? The United States Supreme Court helped resolve this dilemma through two cases, Garrity v. New Jersey (1967) and Gardner v. Broderick (1968), both involving the questioning of police officers.

Under these two court decisions, if a law enforcement officer who is under criminal investigation is not provided with immunity, any statement that they make under the threat of adverse personnel action is deemed to be unconstitutionally coerced (and may not be used in a subsequent criminal prosecution). If the officer is granted immunity but nevertheless refuses to answer questions that are specifically, directly, and narrowly related to their official duties, they may be terminated. See also Police Officers' Guild v. Seattle (1972). If the officer is granted immunity and answers questions specifically, directly, and narrowly related to their official duties, the officer may be dismissed if the answers provide cause for dismissal.

Garrity and Gardner have been cited in Washington case law, but only for public safety positions. Nevertheless, it is suggested that their principles be applied to any employment investigation if the employee might be forced during the course of the investigation to provide self-incriminating statements. In such situations, it might be better to wait for the conclusion of the criminal investigation process before pursuing the employment investigation.

The Pre-Termination "Loudermill" Hearing

After the investigatory interview, certain employees are entitled to pre-termination hearings before being fired. Employees who are not "at-will" – civil service employees and those covered by collective bargaining agreements or personnel policies that provide for termination only "for cause" (Ritter v. Board of Commissioners (1981); Washington Education Ass'n v. State (1982)) – have a property interest in their employment and are entitled to a pre-termination or "Loudermill" hearing before they may be terminated (named after the United States Supreme Court case, Cleveland Board of Education v. Loudermill (1985)). See also Danielson v. Seattle (1987), Payne v. Mount (1985), Punton v. Seattle Public Safety Comm'n (1982), Deering v. Seattle (1974), and Ticeson v. Department of Social & Health Services (1978).

In contrast, at-will employees do not have property rights in their employment and, therefore, are not entitled to a pre-termination Loudermill hearing. They could be entitled to a name-clearing hearing, explained further below on this page.

This right to a hearing for an employee who is not at-will is based on the constitutional principle that no one should be deprived of a property interest without due process of law. In this instance, due process requires that the employee be given notice (oral or written) of the planned termination action, be allowed an opportunity to review the reasons and evidence, and be allowed to present their position before any final action is taken.

This pre-termination hearing need not be formal or elaborate and the decision maker need not be impartial; all that is necessary is an initial check against mistaken decisions (Danielson v. Seattle (1987) and Walker v. Berkeley (1991)). It is advisable to allow the employee to have an attorney present as long as it doesn’t result in an unreasonable delay in the proceedings. While neither Washington State courts nor the 9th Circuit appear to have opined on the issue of whether employees have a right to legal counsel during pre-termination hearings, many employers allow it out of an abundance of caution. Allowing legal counsel at pre-termination hearings can eliminate the need for a post-termination hearing, as due process requirements will have been met.

Depending on the adequacy of the pre-termination hearing, the employee may be entitled to a full evidentiary hearing, post-termination, with the right to an impartial decision maker, witnesses, and legal counsel (Danielson v. Seattle (1987) and Carter v. Western Reserve Psychiatric Habilitation Center (6th Circuit, 1985)). The scope of a post-termination hearing is dependent on context (see Levine v. City of Alameda, which noted that "the adequacy of pre-termination and post-termination hearings are interrelated," and "the scope of one affects the scope of the other"). As stated by the 9th Circuit, "determination of what procedures satisfy due process [in a given situation] depends on the analysis of the particular case in accordance with the three-part balancing test outlined in Mathews v. Eldridge" (Brewster v. Bd. of Educ. Of Lynnwood U. School Dist. (1998)).

Termination Agreements

Sometimes, if litigation seems probable and the facts surrounding the termination are clouded or in dispute, it may be advantageous to seek a termination agreement with the departing employee. Such an agreement, where both the employer and the employee may make concessions, may help avoid future litigation. Since both parties may be asked to give up rights they might otherwise have, it is incumbent that legal advice be sought by both the employer and the employee. Especially from the employer’s standpoint, it is crucial that the employee being discharged knows and is willing to waive the rights (appeal, damages, etc.) that they are giving up. Legal evaluation and assistance at this stage is crucial.

After an Employee is Terminated

After an employee is terminated, there may still be a few loose ends that will require attention. In addition to recovering agency-owned equipment and securing public records in the employee’s possession, other legal issues need to be taken into consideration, including the following:

Issuance of the Final Paycheck

The former employee may believe that they should be paid immediately. Immediate payment, however, is not required by law. RCW 49.48.010 requires that when an employee ceases to work for an employer, the wages due to them on account of the terminated employment be paid at the end of the established pay period. (The above answer may be affected by a collective bargaining agreement or personnel policy that provides otherwise.)

Name-Clearing Hearings

A name-clearing hearing is required when stigmatizing information regarding the reasons for a public employee’s discipline or termination is publicly disclosed. Under the Public Records Act, disciplinary records that reflect substantiated allegations of employee misconduct must be disclosed; therefore, local government employees are entitled to name-clearing hearings when stigmatizing information is placed in their personnel files (Cox v. Roskelley). This hearing may occur either before or after termination.

Post-Termination Appeals

Even if all necessary procedural steps have been followed, and there is a defensible reason for the employment action, certain employees who are not "at-will" may have additional post-termination procedures to pursue. For example, civil service employees may appeal their termination to the civil service commission (RCW 41.08.090, 41.12.090, and 41.14.120). Workers covered by collective bargaining agreements typically will have the right grieve, arbitrate, or otherwise challenge their terminations. And, of course, any employee may, in appropriate circumstances, seek legal redress through the courts.

Exit Interviews

Exit interviews often occur when an employee voluntarily leaves the work force. Such interviews, usually conducted by a personnel officer, allow the employer to gain invaluable information on what it is doing right and what it is doing wrong. The interviews also allow the employer to explain the benefits available to the departing employee and answer procedural questions the employee may have, such as when and how the final paycheck will be issued.

Following a termination, however, exit interviews may not be possible because of the animosities involved. Nevertheless, it may be beneficial if some sort of communication is attempted, allowing at least for a minimal exchange of information.

Recommended Resources

• Washington State Department of Labor & Industries: Termination & Retaliation – Overview of at-will employment and employee protections including protection against retaliation