Can you terminate an employee for looking for another job

Many responsible individuals seek new employment while they are still working at another job. This strategy helps reduce the amount of time a person spends unemployed and ensures financial security. However, many employers do not act kindly when they discover that an employee is seeking opportunities elsewhere.

In some cases, the company may fire the employee if the employer discovers that he or she is actively searching for a job. Due to the contracts and employment terms of most American jobs, this act is usually legal.

Termination During a Job Hunt

As unjust as this termination may seem, many employers retain the right to fire employees for looking for another job. The majority of employees in the United States are “at-will employees.” This term means that you and the employer reserve the right to end your employment at any time, for any reason, or for no reason at all.

Employers can fire you for seeking another opportunity with or without notice. However, firing someone for discriminatory purposes is illegal. In addition, you should read through your contract to determine if you are truly an at-will employee. Some employee contracts and union protections may prohibit employers from firing you for seeking another job.

Discriminatory Termination Laws in California

Despite the at-will employment stipulation, California courts do consider certain firing practices discriminatory. If you believe your employer had an ulterior motive for firing you that did not pertain to your job search, you could contest the termination. You may have grounds for a wrongful termination lawsuit in California if your former employer engaged in any of the following practices.

• The reason for your firing violated a section of your employment contract or union protections.
• Your employer violated any section of your contract or protections, such as denying benefits, wages, hours, or any other job right.
• Your employer fired you based on one of your protected characteristics.
• Your employer fired you to retaliate against you for filing a complaint, taking time off, or exercising a protected right.
• Your employer fired you for refusing to commit an illegal act or malpractice.

Protected characteristics under California law include:

• Race
• Sex, including pregnancy
• National origin
• Sexual orientation
• Gender identity
• Color
• Religion
• Age
• Genetic information
• Disabilities
• Medical conditions
• Status as a victim of sexual violence
• Marital status
• Political beliefs
• AIDS/HIV diagnosis
• Citizenship status

Tips for Speaking With Your Employer About Your Job Search

If your employer speaks to you about your job search, a few speaking tips can help you calm the waters and avoid an unnecessary termination.

• Always be honest if your employer confronts you about searching for another opportunity. Your employer will find out that you will leave your job eventually. Let your employer know that you are searching for another opportunity.
• Next, justify your reason for searching for another job. This will help lift the blame off of you and your employer and soften the blow. Wanting to advance your career, secure a more stable position, changing industries, moving, or receiving an interesting opportunity are slightly more employer-friendly reasons for searching for a new position.
• Do not tell your employer that the reason you are searching for another position is because you are unhappy with your position, the company, or his or her leadership. As true as this reasoning may be, saying so could aggravate the situation.
• Clarify your commitment to your current position. Do not allow your work quality to slip—you want to end on a high note. Poor job performance could lead to early termination. Complete all of your projects and make sure to attend work each day.

If you believe that you experienced wrongful termination due to discrimination or a breach of contract, contact an attorney as soon as possible. You could reverse the termination or seek damages to compensate for economic and non-economic losses.

Is it legal—and if so, is it advisable—to fire a worker if he or she is looking for another job?

“Yes, it is legal,” said Eric Meyer, a partner at Philadelphia-based law firm Dilworth Paxson LLP and author of the online law blog “The Employer Handbook.” “Whether or not it is advisable depends on the circumstances.”

While most people work “at will”—meaning they can be fired for any reason, at any time, as long as it is not discriminatory—companies should consider the quality of the employee, any restrictive contracts and legal minefields before terminating someone who’s looking elsewhere for work, labor attorneys and HR experts said.

It’s the naive manager who believes that employees don’t keep their eyes open for other opportunities. Companies should consider terminating such workers if they are privy to confidential information, trade secrets or proprietary data, “especially if they’re looking to transfer to a competitor,” said Jon Hyman, a partner in the labor and employment group at Ohio-based Kohrman Jackson & Krantz PLL.

“My first question would be: ‘What do they do? What information do they have access to? Are we concerned about leaks of information?’ If that’s it, maybe we need to push the employee out the door.”

Legal Considerations

It is important to take into account how a manager learns that an employee is seeking another job. If someone uses an office computer or work e-mail account to search or apply for positions, “then it’s on company equipment and it’s fair game for a company to look at,” Hyman said.

“The caveat is going to be if an employee uses a personal e-mail account through company equipment. A company can’t hack into my personal Gmail account even if a company learns my password.”

Also risky is firing an employee who’s looking for a job in order to escape perceived harassment or some other illegal working condition, cautioned Jonathan Segal, a partner in the employment services practice area at Duane Morris LLP.

“Sometimes employees leave to avoid filing lawsuits,” he said. “They’d rather switch than fight. If you terminate them, the discharge itself may not be illegal, but by taking away their opportunity to switch [jobs], they may end up fighting. It may bring about a claim if the employee was trying to avoid [filing a lawsuit] by finding another job.”

Hyman said if an employee being terminated has a written agreement with the company, managers may owe the individual bonuses or other compensation.

High Performers vs. the Mediocre
Managers should also consider whether the offending employee is a high performer.

Typically, good workers are job searching because they don’t feel recognized or appreciated or they don’t see any career trajectory at their organization, explained Holly DePalma, director of HR services at Pennsylvania-based MidAtlantic Employers’ Association, a membership organization that provides workplace strategy consulting.

“Let’s say they’re interested in new challenges, but they perceive an inability to move up in the organization, and you identify this person as a potential leader who you want to keep,” she said. “Wouldn’t a company be better off having some dialogue with the employee or implementing some kind of plan for that person to grow and develop? Turnover is extremely costly, and good employees are hard to find.”

Managers should think about keeping even run-of-the-mill employees if trade secrets aren’t at risk, according to Hyman.

“Maybe your first reaction shouldn’t be, ‘Get that disloyal SOB out the door,’ ” he said. “Maybe it should be, ‘Why is this employee dissatisfied? Is there something we’re not doing right to meet their needs?’ ”

Residual Suspicion and Hard Feelings

Having a blanket policy that requires firing employees who look for other jobs may not be wise, Segal said.

“What message does that send to the workforce?” he asked. “That if you’re not happy, you’d better stay put because if we catch you looking, we’re going to fire you? Then you end up with employees who feel trapped and create mischief.”
But if companies keep job-hunting workers on board, might managers harbor ill will or residual suspicion about their loyalty or productivity?

“I’ve worked with very traditional presidents who might have that kind of feeling about an employee—that they’re no longer loyal,” DePalma said. “And I’ve had a couple of instances where I counseled them and said, ‘I think you’re being shortsighted.’ It’s now a two-way street and very different from the way it used to be years ago. Especially with young employees, it’s all about, ‘What are you doing for me?’ ”

Hyman said managers should also be careful when providing references for individuals who were fired for looking elsewhere. While it may be tempting to bad-mouth the worker, it’s wisest to “subscribe to a less-is-more philosophy.”

“Companies today are gun-shy,” he observed. “They don’t want to risk a lawsuit, so they’ll just confirm that this person was employed on these dates in this job position and maybe give a salary or wage. They don’t want employees to say, ‘I didn’t get hired and you’re liable for defamation.’ If you’re going to let [an employee] go, don’t do anything after the fact that will get you sued. Don’t hinder the employee’s job search; don’t reach out to companies and say malicious things about the employee. Let them go about their business and try to find that new job.”

Dana Wilkie is an online editor/manager for SHRM.

To read the original article on shrm.org, please click here.

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