FORTUNE Small Business:

Can I fire an unpopular worker?

Unpleasant personality traits can be grounds for termination.

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(FORTUNE Small Business) -- Dear FSB: One of my employees is pretty capable, but she lacks people skills. No one in the office likes dealing with her. Recently she called me at home at 9 P.M. on a Friday, crying and saying she was typing up her résumé because the entire staff was against her. I listened, and then hinted that it wasn't the time or place to discuss this. Now office tension is high. Can I tell this woman that, because she said she was updating her résumé, I assume she's given notice?

- Joanna, Portsmouth, N.H.

Dear Joanna: Not quite.

"Sending out résumés is not legally the same as saying, 'I quit,'" says Stephen Sonnenberg, an employment lawyer at Paul Hastings Janofsky & Walker in New York City. Yet an employee who reveals that she is job hunting "has surely opened the door to a talk," he adds. "You have a right to ask whether she plans to leave and, if so, when."

You don't say you have cause to fire her, but it's fine to call her bluff.

Often employers tiptoe around problem employees because of vague fears of violating the Americans With Disabilities Act (which protects workers with mental illnesses). A staffer may be emotionally unstable or paranoid, but unless she's been diagnosed with a mental disability, the ADA doesn't apply. And, says Sonnenberg, you have a right to set employee rules - such as no calls at home after 7 P.M. unless the office is ablaze - as long as you apply them consistently.

In cases where workers have been let go for being unruly, hostile, or simply awful to work with, Sonnenberg notes, "the courts have held that employers need not tolerate misconduct on the job. Personality traits, such as an inability to work with others, are unprotected by law." To top of page

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