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How to fire employees and not get sued

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Wednesday, August 01, 2007

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People often strongly identify themselves with what they do for a living, and their self-worth is closely connected to their continued employment. When people are let go, it makes a big difference if they can keep their dignity intact. They will be much less likely to sue their former employer. Here are some tips to keep in mind when making termination decisions and delivering the message to the employee.

Make sure you’re right: Gather all the supporting facts and documentation. You do not want to be wrong when you decide to terminate an employee. Part of being right is making sure the employee is aware of performace issues, preferably in writing, and has been given 30 days to meet expectations prior to the termination decision. Give the employee a chance to ask and answer questions, address issues and tell his or her side of the story.

Make a clear decision: Carefully consider all the facts and information that you have gathered, including policies and discipline procedures, and be able to clearly articulate the lawful reason for the termination. It is critical that you verify that the reason is lawful; employment law does not always follow the norms of common sense.

Proceed without delay:  If for some reason you cannot immediately terminate when you make the decision, at least document when and why you made the decision, why you have to delay communicating it to the employee, and when you intend to do it. This is important because an employee who knows that termination is coming may attempt a pre-emptive move that would prevent a discharge (such as falling down the stairs and filing a workers’ compensation claim).

Choose a good time: Do not terminate an employee on a Friday. A terminated employee will often seek out resources, such as unemployment benefits, etc. If the offices he needs are closed, frustration, anger and fear can mount and fester over a weekend. You do not want a call from an angry employee on Monday morning, nor do you want the employee to be calling around for a lawyer on Monday morning. Let the employee go earlier in the week so that the resources he needs are available. Pick a quiet place, if at all possible, away from co-workers. The worst situation is having other employees looking on when someone else is terminated. At the end of the day when others are leaving is probably the best time. Have boxes available for packing up personal items and offer to hep with taking items to the employee’s car.

Keep the termination meeting short: This is not the time to discuss all the things the employee did wrong. Remember, keep the employee’s dignity intact. This meeting is not to effect a change in behavior; it’s too late for that. This meeting is to tell the employee that he cannot continue working for your organization. Have a witness present to substantiate what is said. Generally, it is a good idea to tell the employee the lawful reason for the termination.

It can be helpful to have an outline to keep you on track. Thank the employee for his services. You may even want to tell the employee that if he applies for unemployment benefits, you will not challenge an award, if that is your position. Stand up when you want to signal the meeting is over.

When the employment department asks the reason for termination, and you give a reason, you are committed to that reason. Don’t call a discharge a “layoff.” Otherwise, if you are later sued and you want to tell the real reason for the discharge, your credibility will be questioned.

Terminating an employee is never pleasant, but it is an inevitable part of business. Employment law doesn’t always make sense and some feel it is even weighted against employers. It may be advisable to seek legal counsel prior to making a termination decision.  

— Jan Hirsch,
member, Jordan Schrader law firm


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