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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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If I have an employee that is not performing in his task yet

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If I have an employee that is not performing in his task yet has announced that he will be retiring within a year when he reaches 65 am I within my rights to terminate him?

Thank you for your question. Please permit me to assist you with your concerns.


You absolutely have the right and ability to terminate for non-performance. An announcement of upcoming retirement or 'two-weeks notice' is not a situation where the employee receives the right to do whatever they wish until that date--until they complete employment, they are still lawfully required to provide the same quality and amount of work as in the past, or as a typical employee in their position. So if this employee is not performing, you may want to speak with him and request that he complete his tasks since you do otherwise have the right to terminate.


Having said that, because of the age of the employee, there may be an inference of discrimination based on age. Hence, if you decide to pursue this, make sure that you have a viable paper trail denoting lack of work just in case he later claims he was terminated solely due to age and attempts to pursue a case via the EEOC.


Hope that helps.

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