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 -- 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.”
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 versus 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 havin