Legal Employment Terminations

Becoming a manager at any organization requires you to be an arbiter and referee among your employees. The best case scenario is that you oversee a team that is hungry, inspired, and willing to collaborate to spur your organization forward. When a team is firing on all cylinders, it can accomplish nearly anything.

While this scenario is obviously ideal for any manager or any organization, the reality is often quite different. Humans are complicated. An employee may not have the skills for the job. A different employee may frequently cause conflicts within your team. Even if you have tried to remedy the situation—whether it is additional training or assigning the employee to another team or division —that employee may continue to create issues.

You may have no choice but to terminate that particular employee.

Yes, terminating an employee is an uncomfortable process. In all likelihood, you consider it to be one of the worst parts of your job. Yet before you cut ties with the employee, you want to ensure that you are following all proper procedures, laws, and regulations.

The failure to do so can cause even more headaches for your company—including a wrongful termination lawsuit.

Terminating an Employee: Best Practices

Considering this serious reality, how do you go about properly terminating an employee?

There are several things that you should keep in mind. Overlaying this entire discussion, however, is this critical point: if there is any doubt about a particular action throughout this process, you should speak with your organization’s legal counsel or HR manager. It is better to be conservative and take slightly more time terminating the employee than rashly taking some action that leads to further litigation down the road.

With that said, you will first want to do your homework before terminating the employee. You will want to document the times that the employee did not satisfy the requirements of the job and your response to the poor performance (for instance, a warning). Put these examples in writing and be as detailed as possible. By doing this, you are creating a paper trail that can defend you and your organization if the employee sues you for wrongful termination.

Next, you will absolutely want to read the employee’s contract to see if there are any special termination provisions. Follow all applicable procedures in the contract if the employee is not an “at-will” employee. Even if the relevant employee is an at-will employee, courts have held that there are certain justifications that you cannot use to terminate an employee. Some of those circumstances include termination on the basis of a discriminatory purpose or if you implied that the employee would be fired only for cause.

From here, you will have to meet with the employee to deliver the bad news. Be cool, calm and collected. When you are explaining why you are terminating the employee, rely on facts and the evidence you collected. You can let the employee vent if necessary, but try to remove emotions from the conversation. There also are no rules as to who attends the meeting, so if you would be more comfortable with your organization’s attorney or human resources representative in the room, feel free to do so.

After your meeting with the terminated employee, you will want to ensure that you are keeping all documentation with the employee—at least for several years. You never know if the terminated employee plans on suing your organization, so it is best to stay on the safe side and keep all documentation in a safe place. Also, ensure that you are fulfilling all of your legal requirements with a terminated employee, including COBRA benefits and sending the employee their last paycheck.

Navigating a Tricky Situation

It is never fun to terminate an employee. It is not only stressful for the employee, but it is stressful for you as well. That said, in order to eliminate even more stress in the future, you want to ensure that you follow all procedures when letting go of a poor performer.

While the above suggestions are not a bulletproof guide to terminating an employee, following these steps will help you avoid unforced errors in the firing process. Don’t be afraid to speak with legal counsel or your organization’s HR department if you have any further questions.