What Employee Dismissal is

United States: Yes, “kicking someone out” is informal language for dismissal or termination. However, the manner matters significantly. Simply escorting someone off premises without proper documentation, final payment, or adherence to company policy can create legal liability. Most employers follow formal termination procedures including exit interviews, return of company property, and final paycheck distribution according to state law requirements.

Colombia: In Colombia, dismissal must follow formal legal procedures regardless of the circumstances. “Kicking out” an employee without proper documentation, written termination notice (carta de terminación), and immediate calculation of final settlement (liquidación) violates labor law. Even in cases of serious misconduct, the employer must provide written notice specifying the just cause and ensure all mandatory payments are made. Informal or abrupt dismissals can be challenged in labor courts and may result in reinstatement orders or additional compensation penalties.

United States: Yes, in most cases. Being under the influence of alcohol at work is typically considered misconduct and grounds for immediate termination, especially if it violates company policy or creates safety hazards. However, employers should consider:

• Whether the employee has an alcohol use disorder that may qualify as a disability under the ADA, requiring reasonable accommodation
• Company policy regarding substance abuse and progressive discipline
• Documentation of the incident (witness statements, behavior observations)
• State laws regarding drug and alcohol testing

If alcoholism constitutes a disability, employers may need to offer rehabilitation opportunities before termination, though they can still enforce safety standards and prohibit being intoxicated at work.

Colombia: Yes, this is explicitly listed as just cause for dismissal in the Substantive Labor Code. Being under the influence of alcohol or narcotics in the workplace constitutes justa causa for termination without severance compensation. However, employers must:

• Document the incident thoroughly with witness statements or evidence
• Provide written notice specifying this as the reason for dismissal
• Follow any internal disciplinary procedures outlined in company regulations
• Consider whether the employee’s condition might require medical evaluation

If dismissed for just cause due to intoxication, the employee receives only accrued benefits (cesantías, proportional vacation, prima de servicios) but not severance compensation (indemnización).

United States: Yes, excessive or unexcused absenteeism is a legitimate reason for termination. However, employers must:

• Have clear attendance policies communicated to all employees
• Apply policies consistently across all employees
• Consider whether absences are protected under FMLA (Family and Medical Leave Act), ADA (disability-related), or state sick leave laws
• Provide warnings and opportunities to improve before termination
• Document all absences and disciplinary actions

Protected absences (medical leave, jury duty, military service, pregnancy-related) cannot be used as grounds for dismissal. Employers should carefully distinguish between protected and unprotected absences.

Colombia: Yes, absenteeism can constitute just cause for dismissal, but specific conditions must be met. According to the Substantive Labor Code, justa causa exists when an employee has:

• Two or more consecutive unjustified absences
• Repeated pattern of unjustified absences even if not consecutive

Before dismissing for absenteeism, employers should:

• Issue written warnings documenting the absences
• Request explanations from the employee
• Verify that absences are truly unjustified (not due to illness with medical certificates, family emergencies, or other valid reasons)
• Maintain detailed attendance records

Medical absences supported by proper documentation (incapacidades médicas) are protected and cannot be grounds for dismissal. Dismissing an employee on medical leave can result in labor court challenges and potential reinstatement orders.

United States: Yes, dishonesty—such as theft, fraud, falsifying records, or lying about qualifications—is generally considered serious misconduct warranting immediate termination. Employers should:

• Conduct thorough investigations before making accusations
• Gather concrete evidence (documents, witness statements, security footage)
• Provide the employee an opportunity to respond to allegations
• Document the investigation process and findings
• Ensure the termination is based on verified facts, not assumptions

False accusations of dishonesty can lead to defamation lawsuits, so employers must be certain of their evidence. The severity of the dishonesty and company policy will determine whether progressive discipline is required or immediate termination is appropriate.

Colombia: Yes, dishonesty is explicitly recognized as justa causa for dismissal under Colombian labor law. Acts constituting dishonesty include:

• Fraud or deceit in work-related matters
• Theft of company property or resources
• Falsification of documents or records
• Breach of trust in confidential matters
• Deception regarding qualifications or work history

To dismiss for dishonesty, employers must:

• Conduct a formal investigation with documented evidence
• Provide written notice to the employee specifying the dishonest acts
• Allow the employee to present their defense
• Maintain detailed documentation of the misconduct

When dismissed for just cause based on dishonesty, employees receive only accrued benefits but no severance compensation. However, if the employer cannot prove the dishonesty in court, the dismissal may be ruled unjustified, requiring full severance payment plus potential penalties.

United States: Yes, poor performance is a legitimate reason for termination in at-will employment states. However, best practices include:

• Establishing clear performance standards and job expectations
• Providing regular performance evaluations and feedback
• Offering training, coaching, or performance improvement plans (PIPs)
• Documenting all performance issues and improvement efforts
• Giving reasonable time for improvement before termination
• Applying performance standards consistently

Employers should ensure that performance-based terminations don’t mask discrimination. If only members of protected classes are terminated for performance while others with similar issues are retained, this could indicate discriminatory intent.

Colombia: Yes, poor performance can constitute justa causa for dismissal, but the requirements are strict. The Substantive Labor Code recognizes “systematic inefficiency or poor performance” as grounds for termination, but employers must demonstrate:

• Clear performance standards were communicated to the employee
• The employee received adequate training and resources
• Performance deficiencies were documented over time
• Written warnings were issued giving opportunities to improve
• The poor performance is consistent and not an isolated incident
• The employee failed to improve despite support and warnings

Colombian courts scrutinize performance-based dismissals carefully, often requiring substantial documentation. Many employers choose to dismiss without just cause and pay severance rather than attempt to prove poor performance, as the burden of proof is significant. Progressive discipline with documented warnings is essential if claiming just cause.

United States: Generally, no—not solely because of their disability. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities. However, dismissal may be lawful if:

• The employee cannot perform essential job functions even with reasonable accommodations
• Providing accommodation would cause undue hardship to the employer
• The disability creates a direct threat to health or safety that cannot be mitigated
• The employee is terminated for legitimate, non-discriminatory reasons unrelated to disability (misconduct, poor performance affecting all employees equally)

Employers must engage in the interactive process to identify and implement reasonable accommodations before considering termination. Dismissing a disabled employee without attempting accommodation or for discriminatory reasons can result in significant legal liability.

Colombia: Dismissing a disabled employee is extremely difficult and heavily regulated in Colombia. The law provides enhanced protection (estabilidad laboral reforzada) for employees with disabilities, particularly those resulting from workplace accidents or occupational illnesses.

Requirements for dismissal include:

• Obtaining prior authorization from the Ministry of Labor or a labor inspector
• Demonstrating that the disability prevents the employee from performing any job within the company, even with reasonable accommodations
• Proving the dismissal is not related to the disability
• Paying enhanced compensation if authorization is granted

Dismissing a disabled employee without proper authorization is considered ineffective (ineficaz), meaning:

• The dismissal is null and void
• The employee must be reinstated immediately
• The employer must pay all wages from dismissal to reinstatement
• Additional penalties may apply

Colombian courts strongly favor disabled employees, making it practically impossible to dismiss them without extremely compelling non-discriminatory reasons and full compliance with procedural requirements.

United States: No, not because of pregnancy. The Pregnancy Discrimination Act (PDA) treats pregnancy as a protected characteristic under Title VII. Additionally, pregnant employees may be entitled to:

• Reasonable accommodations under the ADA or state pregnancy accommodation laws
• Job-protected leave under FMLA (if eligible)
• State-specific pregnancy and parental leave protections

A pregnant employee can be lawfully terminated only for legitimate, non-discriminatory reasons unrelated to pregnancy (severe misconduct, position elimination affecting multiple employees, documented poor performance predating pregnancy). However, employers should exercise extreme caution, as:

• Timing of termination during pregnancy raises suspicion of discrimination
• Burden of proving non-discriminatory reasons falls heavily on employers
• Pregnancy discrimination claims are common and taken seriously

Best practice: Avoid terminating pregnant employees unless absolutely necessary and with thorough legal consultation.

Colombia: No. Colombian law provides absolute protection (fuero de maternidad) for pregnant employees and new mothers. This protection extends:

• Throughout the entire pregnancy
• Up to three months after childbirth (18 weeks if the baby is born with a disability)

Dismissing a pregnant employee is considered ineffective (ineficaz), regardless of the stated reason, unless:

• The employer obtains prior authorization from the Ministry of Labor
• Authorization is granted only in cases of extremely serious misconduct by the employee
• The employer demonstrates the dismissal is completely unrelated to pregnancy

If an employer dismisses a pregnant employee without authorization:

• The dismissal is automatically null and void
• The employee must be reinstated immediately to her position
• The employer must pay all wages from dismissal date to reinstatement
• The employer may face additional penalties and fines

Even with just cause (misconduct, poor performance), employers cannot dismiss pregnant employees without Labor Ministry authorization. This is one of the strongest employment protections in Colombian labor law. Employers who unknowingly dismiss pregnant employees (when pregnancy wasn’t disclosed) must still reinstate them upon learning of the pregnancy.

United States: There is no single federal answer—it depends on multiple factors:

FMLA Protection (12 weeks):

• Employees eligible for Family and Medical Leave Act are entitled to 12 weeks of unpaid, job-protected leave for serious health conditions
• Applies to employers with 50+ employees and employees who have worked 1,250 hours in the past year
• Cannot be terminated during or immediately after FMLA leave

State Laws:

• Some states mandate paid sick leave (California, New York, Massachusetts, etc.)
• State disability laws may provide additional protections
• Some states have longer leave periods than FMLA

ADA Considerations:

• If illness constitutes a disability, reasonable accommodations (including extended leave) may be required
• “Reasonable” depends on business needs and undue hardship

Beyond Protected Leave: Once protected leave is exhausted, employers may:

• Require medical certification of ability to return to work
• Terminate if the absence creates undue hardship
• Consider extending leave as a reasonable accommodation
• Fill the position permanently if business necessity requires

Best practice: Have clear attendance policies, communicate expectations, track all leave types, and consult legal counsel before terminating employees on extended medical leave.

Colombia: Colombian law provides extensive protections for employees on sick leave (incapacidad médica):

Medical Leave Protection:

• Employees with doctor-certified medical leave (incapacidades) cannot be dismissed during the leave period
• Medical leave can be issued by health insurance providers (EPS) or occupational risk insurers (ARL)
• Duration depends on medical necessity as determined by healthcare providers

Types of Medical Leave:

1. Temporary Common Illness: Up to 180 days initially, potentially extended to 360 days, and in exceptional cases up to 540 days
2. Workplace Accident or Occupational Illness: Up to 180 days initially, potentially extended to 360 days
3. Maternity Leave: 18 weeks (can be extended in certain circumstances)

Enhanced Protection (Estabilidad Laboral Reforzada): Employees who suffer workplace accidents or occupational illnesses have special stability protection:

• Cannot be dismissed while receiving treatment or rehabilitation
• Protection extends beyond medical leave period until full recovery or disability determination
• Dismissal requires Ministry of Labor authorization
• Even with authorization, enhanced severance (up to 240 days’ salary) must be paid

After Medical Leave Expires:

• If medical leave exceeds 540 days (common illness) or 360 days (workplace-related), the employee may be evaluated for permanent disability
• If declared permanently disabled, enhanced disability protections apply
• Employer cannot terminate until formal disability determination is made

Dismissal Attempts During Medical Leave: If an employer dismisses an employee on medical leave:

• The dismissal is considered presumptively invalid
• Employee can seek reinstatement through labor courts
• Employer must prove dismissal was for just cause completely unrelated to health condition
• Courts heavily favor employees in these cases

Best Practice: Colombian employers should never dismiss employees on medical leave without consulting specialized labor attorneys. The protections are among the strongest in Colombian labor law, and violations result in costly reinstatement orders and penalties.

United States: The dismissal process varies by state and company policy, but generally includes:

1. Review Legal Considerations: Ensure the dismissal doesn’t violate federal, state, or local anti-discrimination laws, employment contracts, or union agreements.
2. Document Everything: Maintain records of performance issues, disciplinary actions, warnings, and the reasons for termination.
3. Plan the Termination Meeting:
   • Choose an appropriate private location
   • Have a witness present (typically HR representative)
   • Prepare talking points and termination letter
   • Schedule appropriately (often mid-week, mid-morning)
4. Conduct the Meeting:
   • Be direct, brief, and professional
   • State the decision clearly—this is not a negotiation
   • Explain the reason for termination concisely
   • Listen to the employee but remain firm
5. Provide Documentation:
   • Written termination letter with effective date
   • Information about final paycheck (timing varies by state)
   • COBRA health insurance continuation information
   • Unemployment benefits information
   • Details about returning company property
6. Handle Final Pay: Comply with state laws regarding final paycheck timing (some states require immediate payment upon termination).
7. Secure Company Assets: Collect keys, access badges, company devices, and deactivate system access.
8. Exit Process: Escort the employee to collect personal belongings if appropriate, ensuring dignity and security.

Colombia: The dismissal process in Colombia requires strict adherence to legal procedures:

1. Determine Grounds for Dismissal:
   • With just cause (con justa causa): Must specify exact legal grounds from the Substantive Labor Code
   • Without just cause (sin justa causa): No reason required, but severance must be paid
2. Check for Protected Status:
   • Verify employee is not pregnant, on medical leave, union leadership, or within 10 years of retirement
   • If protected, obtain Ministry of Labor authorization before proceeding
3. Document the Reasons:
   • For just cause: Compile all evidence, witness statements, and documentation
   • Ensure proper investigations and written warnings were issued
4. Prepare Written Termination Notice (Carta de Terminación): Must include:
   • Employee’s full name and identification
   • Effective termination date
   • Specific reason for dismissal (if for just cause)
   • Reference to applicable legal articles
   • Company signature and date
5. Conduct Termination Meeting:
   • Deliver the written notice personally
   • Explain the decision professionally
   • Allow employee to ask questions
   • Have witness present
6. Calculate Final Settlement (Liquidación): Must include:
   • Outstanding salary and overtime
   • Proportional vacation pay (vacaciones)
   • Proportional prima de servicios
   • Cesantías with interest
   • Severance compensation if applicable (indemnización)
   • All social security contributions up to termination date
7. Prepare Settlement Document:
   • Detailed breakdown of all calculations
   • Legal references for each payment
   • Signatures from both parties
   • Statement that employee receives payment in full
8. Make Payment:
   • Should occur within reasonable timeframe (typically within days)
   • Payment can be by check, bank transfer, or cash
   • Employee must sign settlement document acknowledging receipt
9. Maintain Records:
   • Keep copies of all documentation for minimum 3 years (statute of limitations)
   • File with social security records
   • Retain evidence in case of future disputes

Critical: Consult with Colombian labor law attorney before dismissing employees, especially for just cause terminations or protected employees.