There’s plenty to consider before firing an employee

“Can I fire this employee?”

It’s a simple question — just five words long. Yet, the response to that question could fill a book. Perhaps the best answer to it is … “it’s complicated.” The goal of this article is to provide context and information on this topic to those in leadership or supervisory positions.

Every state, except Montana, recognizes at-will employment, which means employment may be terminated at any time and for any reason, or for no reason, just not for an illegal reason. And therein lies the challenge: Terminating an employee is fraught with potential liability risk.

Handle terminations with care

Whether it’s called termination, discharge, letting someone go, or firing, two words that one should always keep in mind when considering such an action are justification and documentation.

Despite the at-will doctrine, a fired employee can file a wrongful termination claim. In that case, the employee would need to show that the termination violated some law or public policy. The employer would need documentation to defend the termination decision.

If there is not enough documentation to justify the termination, the documentation is contradictory, or if the termination comes at a suspicious time (for example, right after an employee files a complaint), it may look like discrimination, a contract violation, or retaliation.

Avoid retaliation claims

Retaliation occurs when an employer takes adverse action (such as firing someone) because that person asserted rights protected by equal employment opportunity laws —

Make sure your documentation shows justification. If an employee is being fired for poor performance, but all performance reviews are positive, the company will need some other documentation as evidence of the poor performance.

or any other law granting employee protections, such as the Family and Medical Leave Act or the National Labor Relations Act.

Before deciding to finalize a termination, consider the following:

Make sure your documentation

shows justification. If an employee is being fired for poor performance, but all performance reviews are positive, the company will need some other documentation as evidence of the poor performance.

Investigate thoroughly and look at past disciplinary situations. Don’t look only at how this employee was treated, but consider how other employees were treated in similar situations.

Treating employees differently for similar infractions is often a weak point in an employer’s case.

Provide evidence the employee received adequate notice that termination was a potential consequence and was given reasonable time to improve. Of course, this will not apply if a single act of misconduct, such as workplace violence, warrants termination.

Another best practice is to check with your organization’s human resources department before terminating an employee. They may be aware of reasons why a termination carries higher risk. For example, if the employee just filed a complaint about safety violations, a termination might look like unlawful retaliation. Similarly, if a female employee recently informed HR that she’s pregnant and inquired about leave benefits, terminating may look like pregnancy discrimination. Although termination may still be an option, the documented justification will be more critical.

Judy Kneiszel is an associate editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by human resources and corporate professionals. Kneiszel specializes in business topics such as recruiting and hiring, onboarding and training, team building, employee retention, and labor relations. She is the editor of J. J. Keller’s SUPER adVISOR newsletter and Essentials of Employee Relations manual. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.

JUDY KNEISZEL