Ask Leslie: Can I Fire An Employee Who Is Trying To Sue Me?

By Leslie Zieren, The McCalmon Group, Inc.

I've had an employee for two months. She has yet to make any progress on making sales goals, despite completing all training, twice. Four days ago, I received a letter from her attorney, threatening me, alleging I was discriminating against her by paying her less because she is female. I have three other employees, all females. Their pay is the same. This letter and allegation came out of the blue. Today, this employee brought me a letter from her law firm, stating they were no longer representing her against me because she had no proof of pay discrimination based on sex. I just found out she is in litigation with her previous employer for the same issue. Even though, for now, the litigation heat is off me, I don't trust her. I don't want her around. 


It is understandable that you don't trust this employee. She did not attempt to discuss any issue she may have had regarding alleged discrimination based on sex with you and instead had her attorney threaten to file a lawsuit. And, you know she is currently suing her previous employer for the same violation.

You do not want a retaliation claim; nor do you want this employee. If your state's anti-discrimination law applies to employers of your size, she has a right to challenge, without retaliation, what she perceives as a discriminatory pay practice, based on pay, even if it turns out she is wrong.

You could offer her a severance agreement, written by your attorney, in which she would waive her rights to sue you for any employment-related reason, coupled with a severance payment – which she may or may not choose to accept and sign. 

Or . . . you could begin to create detailed documentation of her performance and your mentoring efforts. Sit down with her and note the passage of two months without any improvement. Ask her if she thinks additional training will help; if so, give it to her. Ask her to identify why she thinks she has made no progress thus far toward her production goals. Point out that her three coworkers consistently make their goals and have since they were hired, so you know it can be done.

Tell her you will not be able to afford an employee who does not generate income and that you will be monitoring and documenting her progress daily, reviewing with her all her sales calls and other potential customer interactions to see what can be improved, so that she can be profitable.

Keep this documentation, and discuss it with your local counsel before terminating her.

Also, make sure you have an accurate timekeeping system, and that she is using it. Review it every day with her, and it is a good idea to do so with your other three employees.


Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.



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