Despite the best laid plans and intentions, most employers at some point encounter a new hire who they realize was a bad choice.  The job description may have been clearly aligned with the responsibilities, the interviewing process may have been appropriately structured (a subject for a separate blog post), and yet days, weeks, or months later, the organization realizes they made a mistake.  That’s when the call to their lawyer comes – what can I do? Can we fire this person? Most of the time, in the private sector, the answer is yes – but with important qualifiers.

The Meaning of Employment at Will

As I have written in the past, employment at will remains the bedrock principle of employment law in the United States. An employee can be fired for any reason, or no reason at all, provided that doing so does not violate the law, or breach some contractual obligation. The challenge is in knowing where the law may impose restrictions. I listed more than 30 legal limitations in a somewhat cheeky but fundamentally sincere blog article last year. Here I want to focus on some of the most common situations that arise with new hires.

Misalignment on Social Media

Individuals often express their views on social media without necessarily thinking about who might see them.  When those views are fundamentally contrary to the mission and values of the organization that employs them, it can create challenging situations, particularly if the employee is a manager, an educator, or holds some other position of power relative to others.

In an employment at will context, an employer generally need not continue to employ an individual who, for example, has made public statements that are discriminatory or that celebrate violence.  Termination after recently hiring an individual is trickier, though, than having a designated individual in the organization (not the hiring manager) or a third-party vendor run a social media search to identify any offensive statements so they can be evaluated before a new hire starts.  In either situation, the specifics of the statements, how they would reflect on the organization, and the role for which the individual is being hired should be vetted with legal counsel to confirm they are consistent with legal standards.

A recent decision from New York State’s highest court, Sander v Westchester Reform Temple (2025 NY Slip Op 06958), illustrates some of the challenges.  A religious school teacher at a synagogue alleged she had been fired less than three weeks after she began work, based on a blog post she had co-written that expressed certain views that were contrary to the institution’s stated position.  The teacher argued that her blogging was legally protected under a section of the New York State Labor Law (section 201-d) that protects employees who engage in certain types of off-duty activities, including lawful “recreational activities”.

The trial court dismissed the teacher’s claim, and the appellate court upheld that dismissal.  The Court of Appeals affirmed the dismissal of the complaint, holding that as a teacher of religion, the teacher fell within a ministerial exception under the U.S. Constitution that precludes application of employment discrimination laws to claims between a religious institution and its ministers.  The Court therefore held that the teacher had no legal basis to challenge the  employer’s decision.  The Court of Appeals’ holding was consistent with past decisions by the U.S. Supreme Court and, was based on a construct that is limited to religious institutions.

Of broader relevance to New York State employers, was the state appellate court’s decision in the case.  The appellate court did not consider the constitutional argument but instead focused on the scope of the lawful activities law.  The court held that even if blogging is, in itself, a protected recreational activity, the teacher did not claim she was fired based on the activity of blogging.  Rather, the teacher claimed her employment was terminated based on the content of her blog post.  That content-based termination decision, the court held, was not protected by the state’s lawful activities law.  The takeaway for employers: it may be legally permissible to part ways with a new hire if an employer belatedly learns that the employee’s social media activity is contrary to the mission or values of the organization.

Changing the Work Schedule

What if your new hire agreed to the work schedule outlined in the interview, and then informs you that due to personal issues, they can no longer work that schedule?  Employers have the right to expect employees will come to work on time and work their scheduled hours.  Employers get to set the work schedule – not their employees.

There is one important caveat here, though, and that requires a conversation with the employee.  What does the employee mean by personal issues?  Is that a cryptic reference to a legally-protected issue (a medical condition, domestic violence, pregnancy, religion) for which the employer may need to consider a reasonable accommodation?

Even if legally-protected, an accommodation request must meet three criteria: it must be reasonable; it cannot impose an undue hardship; and it must be determined through an interactive process, or a “cooperative dialogue” as New York City law defines it.  That means that no accommodation is guaranteed, and the employee can request but cannot dictate the terms.  It also means that the employer needs to engage in dialogue with the employee to understand what is being asked.  The takeaway here: ask questions and get legal advice if needed before jumping directly to termination of the new hire who says they need to change their work schedule.

Unprofessional Behavior

Sometimes it is the behavior that the employee demonstrates at work over the initial weeks or months after hire that raises red flags for the employer.  Recent examples that have been presented to me by clients have included employees who:

• speak condescendingly to their peers or speak over others in group settings, which is contrary to the organization’s culture;
• arrive late for work, or sign off early on a regular basis;
• are frequently seen standing around chatting with others when the employee should be working; or
• are not responsive to inquiries or requests from their manager or coworkers.

Most often in these situations with a new hire, the call I receive is framed in terms of whether the organization needs to put in place a 30 to 90-day performance improvement plan (“PIP”) before letting the employee go.

If the issue is bad behavior being demonstrated by a new hire, where the duration of the PIP might match or exceed the employee’s current tenure at the organization, a PIP may be excessively burdensome and unnecessary.  That does not necessarily mean the employer should move to immediate termination.

Here, too, a conversation with the employee, this time in the form of constructive feedback delivered by the employee’s manager, may be a better approach.  Especially for an employee who is new to the workplace or new to a more professional or structured environment, the behavior may be based on a lack of understanding as to workplace expectations.  If a simple conversation can set a new hire on the right path, especially if the employee has otherwise demonstrated strong performance or good potential, then it is worth that investment.  Consider the time that the conversation requires, in contrast to the time otherwise needed to recruit and hire someone else, and then perhaps attempting the feedback conversation will no longer seem so onerous.  If the employee repeats the same poor behavior after the counseling conversation, then the employer can move to termination for an at-will employee, without progressing through a more formal disciplinary process.

Poor Work Quality/Lack of Skill

Employees oversell themselves.  Not always, but at times the employee’s representation of the employee’s skillset may exceed that which the employee actually knows.  Perhaps the employee has seen a particular software program before, or used it to perform some basic functions, but the job requires a much deeper understanding of that tool.  Or the employee worked with certain systems in a prior role, but that was more than five years ago – the systems look and perform differently now, and the employee will have a steep learning curve to reach a level of fluency that is akin to how the employee operated at the prior job on an earlier version of the systems.  Or the employee seemed to have relevant experience conducting certain types of analysis, preparing reports, or performing other key elements of the job, but the work product the employee is generating is too simplified, too complex, too disjointed, riddled with grammatical or mathematical errors, or otherwise just plain wrong.

Here the question is less one of discipline, and more one of training.  How much aptitude and industriousness has the employee demonstrated, and how much training would be necessary to bring the employee to the expected level?  Does the organization have the time and financial resources to provide that training?  As with the employee engaging in unprofessional behavior, deciding whether to make that investment should be measured against the employee’s other demonstrated behaviors, the likelihood of a successful outcome, and the time otherwise needed to recruit and hire someone else.

Legally, the employer can determine that an employee who overstated credentials is not an employee worth keeping.  Practically, the employer may want to do a cost-benefit analysis of the training investment required before deciding whether to proceed with termination.

What About the 90-Day Probationary Period?

Some organizations set an initial assessment period for new hires, most often of 90 days.  Historically, and particularly in a unionized or other termination-for-cause situation, those first 90 days are the only window in which employment is at-will.  Such employers have additional pressure to evaluate new employees early and thoroughly, and move quickly to termination if the candidate is not working out.

For most organizations, though, employment at will is the governing principle for the duration of the employment relationship.  The first 90 or so days may be delineated as an “initial evaluation period” (or under a similar title), and eligibility for certain time off or other benefits that are not legally mandated may hinge on successful completion of that initial evaluation period.  Significantly for this context though of the bad hire, an employer should not feel constrained from taking employment action, including termination, simply because the initial 90-day period has passed.

People take vacation or get sick, other work demands become pressing, business decisions require higher-level approvals, and there are myriad other reasons why an organization may not have acted on an identified bad hire within the first 90 days.  If the business reasoning is sound – such as with any of the above examples of concerning social media content, not following the agreed work schedule, or unprofessional behavior – then the timing of the termination for an employee at will need not adhere to a 90-day post-hire deadline.  The employer can still proceed with the desired employment action, subject to the other legal considerations discussed in this article.

Think, Get Advice, and Determine an Action

Ultimately, organizations need to run their operations effectively and that means employing people who can do the work.  If you made the decision to hire someone, and promptly regret having done so, then employers have the option of ending the employment relationship.  Legal considerations do come into play, as do the practicalities of having to find someone else to do the job, but ultimately it usually comes down to a business decision.

By Tracey I. Levy