Most employment claims are not filed against employers that have been careless or unkind with an employee. They are filed against good employers, that have busy workplaces and are doing their best, but unfortunately make small missteps along the way, usually under time pressure and with the best of intentions. None of these employers set out to create liability. That is exactly why the mistakes below are so common, and so worth underscoring.
- Misunderstanding what “at-will” really means.
Many employers incorrectly treat at-will employment as a blanket protection – if there’s no written contract, the thinking goes, an employee can be let go for any reason at all. That is not quite right. New Hampshire’s Supreme Court recognized a narrow exception to at-will employment as far back as a 1974 case: a termination can be wrongful even without a contract if it crosses into public policy the state has chosen to protect. In addition, a termination can be unlawful if it violates a statute, such as the anti-discrimination, leave or whistleblower laws.
The lesson is not that at-will employment is meaningless. However, it will not provide a shield against every litigation claim. Before relying on at-will status to justify a quick decision, it is worth asking whether the real reason for the termination may provide grounds for an employee to file a claim or arguably touches on anything the employee did, refused to do, or reported that the law is designed to protect.
- Waiting to write it down.
Documentation is the single most powerful, and most neglected, tool an employer has. The instinct to give someone a break, or to assume things will improve on their own, is a good instinct. But when that instinct becomes a habit of not writing anything down until a termination is imminent, the employer is left trying to reconstruct months of history from memory, days before a decision must be defended. A thin personnel file does not just weaken a case; it invites the inference that the stated reason for discipline was invented after the fact. Contemporaneous notes – dated, factual, specific, and free of speculation, and preferably provided to the employee – are worth far more than a manager’s confident memory. Document the coaching conversation the same week it happens, not the week the employee is let go.
- Disciplining right after a complaint, without asking why now.
An employee has been struggling for months. Deadlines are missed, the supervisor has repeatedly addressed performance concerns, and termination is now being considered. Then, before the employer acts, the employee complains of discrimination. Can the employer still proceed with termination?
Employees who make legally protected complaints do not become immune from legitimate discipline or termination. But a complaint should cause the employer to reassess the decision carefully. First, determine whether the complaint involves legally protected activity and, if appropriate, investigate it. At the same time, review the proposed discipline independently and confirm what, if any, performance problems were documented before the complaint.
Most importantly, ask the manager, why now? If poor performance was tolerated for two years but suddenly results in termination two weeks after a discrimination complaint, the timing may support a retaliation claim. The situation looks very different if documented warnings, performance discussions, or termination deliberations preceded the complaint.
Employers need not abandon legitimate performance management simply because an employee complains. But they should ensure that the decision is supported by pre-existing facts and would have been made regardless of the protected activity. Sometimes termination remains appropriate, but the key is being able to demonstrate why.
- Putting it in an email or a Teams message that no one would want a jury to read.
Frustration is a normal part of managing people, but it should never be typed. Sarcastic asides, offhand comments about an employee’s age, health, or family situation, or casual predictions about “finally getting rid of” someone all live forever in a searchable, discoverable record. In litigation, these messages are often more damaging than the underlying decision, because they suggest a motive the employer will struggle to explain away, however legitimate that decision was.
The test is simple: before hitting send, ask whether you would be comfortable having the message read aloud in a courtroom, in front of a jury. If the answer is no, don’t draft or send.
- Short-circuiting the ADA interactive process.
Lastly, whenever an employee indicates they are unable to perform their job duties due to a medical reason hit the pause button. The law does not require an employer to grant every request, but it does require a genuine, good-faith back-and-forth to identify one that works. Cutting that conversation short may turn a manageable accommodation request into a lawsuit.
Start by asking the employee, “How can we help?” From there, the conversation should cover three things: what accommodation is being requested, what medical documentation is reasonably needed to confirm the disability and the need for accommodation, and what the job’s actual essential functions are. Any request for medical information should be limited to what is necessary to establish the disability and the need for an accommodation, not a demand for the employee’s full medical file. If the first idea raised isn’t workable or would impose an undue hardship, the conversation continues; propose an alternative rather than simply denying the request and moving toward discipline. Reassignment to a vacant position can be part of the discussion, but only as one option among several considered, not a shortcut to move someone out. And as with everything else here, document what was asked, what was offered, and why the same discipline that protects the employer in a termination protects it here, too.
None of this means good managers should be afraid to manage. It means building habits that hold up under scrutiny. It is also worth remembering that even a claim with little merit must still be investigated, answered, and often litigated before it can be dismissed; frivolous claims are not free claims. That reality is precisely why good habits matter so much: the goal is not simply winning claims but avoiding them in the first place.