Hold Your Fire! Before Terminating an Employee, Ask These Questions

Since every termination comes with some risk, it’s always wise to slow down and ask some questions first. It’s important to have a legal and documented reason for every termination decision. To help you do that, here are some questions and guidance to bear in mind each time you are deciding whether termination is appropriate.

Do I have a lawful reason for letting them go?

No matter what your reasons for termination, they must not violate federal, state and local laws. Lawful reasons are typically directly tied to work performance. Some lawful reasons include insubordination, attitude, low productivity, poor quality of work, poor attendance, harassment of other workers or customers, discrimination, theft, unlawful behavior, physical violence or threats against other employees. Lawful reasons can also be due to business needs, such as being overstaffed, though, in that case, it would be called a layoff. Never call a valid termination for performance reasons a layoff. 

Please, remember being in an at-will state DOES NOT mean you can terminate for any reason. Even in an at-will state, which is everywhere except for Montana, you should be able to easily state a lawful reason for termination. In the absence of a lawful reason, your ex-employee and their lawyer will be able to write their own narrative– proving that the firing was unrelated to job performance or that it was unlawful.

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Do I have strong documentation?

No matter what lawful reason you give for termination, protect yourself with good documentation and best practices in place.

One way to arm yourself is with the best practice of having employees acknowledge expert-written job descriptions which outline the specific duties of each position in your practice. If an employee fails to meet those duties, you can document those specific failures, making a strong, well-documented case for poor performance.

It is also important to have an employee handbook or manual that clearly outlines expectations for behavior as well as what happens if employees don’t meet those expectations. Those expectations are generally laid out in several policies. It is critical that you have a policy handbook that is drafted and reviewed by HR experts. Remember that if one of your self-written policies unknowingly violates your employee’s legal rights, then that is evidence, written by you, acknowledging your lack of compliance.

Whatever corrective action (or disciplinary) plan you use, be sure to integrate documentation. It’s not a good coaching practice to simply tell your employees where they fall short or go wrong. Instead, with each misstep, take some time to tell them what they can do to get back on track. There are corrective action methods like Progressive Corrective Coaching that allow you to nudge your employees back on the path to success while protecting yourself legally. Methods like Progressive Corrective Coaching can be utilized to document that you took reasonable steps to both inform and provide an opportunity for the employee to meet the expectations of the position as outlined in the job description or through verbal and written communication.

Am I following my own policies, and treating this employee the same as others?

Consistency is key. So you want to be sure you are taking similar actions with each employee as you have with others in the past. For example, terminating one employee for repeated lateness while not consistently doing the same to others does not support your case for firing.

The need to be consistent is no small matter.

If you are treating one employee differently, they may frame a firing as you using the termination reason as a pretense.

Sure they’ve been late quite a bit, but so have three other employees who have not been terminated or even written up for the same actions. termination.

Are there any proximity issues?

A proximity issue refers to a protected activity that happens during the regular course of being your employee which is close in time to an adverse action taken against them. It becomes an issue when, in the middle of a bunch of poor performance-related issues, an employee also engages in protected activity.

Note that A LOT of things can be considered a protected activity. We are just running you through some of them. Also, note that just because a protected activity exists, that does not mean you can’t terminate an employee. However, it could make your decision far more risky. We help employers overcome proximity issues all of the time through documentation that helps you to be consistent.

Requesting or using protected leave

When an employee takes or requests some time off and soon after finds themselves unemployed, that employee might wonder if it was related to that request. If your state, county or city provides protected leave in the form of sick days, leaves of absence, time off to vote, lactation breaks, etc., you need to remember that time is protected. Some of those laws even have a built-in presumption of retaliation — that if you take some negative action against an employee soon after requesting to or using protected time off, it’s presumed you are unlawfully retaliating.

Bringing issues to your attention

Employees should not be in trouble or lose their jobs for raising legitimate concerns about their working conditions. This can include a large number of things so take the time to consider your and your supervisors’ interactions with this employee over the past couple of months. Note any areas of concern that the employee may have brought to light.

Employees cannot be retaliated against for raising health and safety concerns or questioning whether they’re being paid properly. Of course, if they recently expressed any concerns whatsoever about how you, coworkers or patients are treating them, that is a huge red flag for termination that may need to be addressed. Employment laws make it your responsibility as an owner or manager to maintain a workplace free from discrimination and harassment. If an employee raises a concern related to their treatment, it is your obligation to address it.

It’s important to know what federal, state, and local laws apply to your business which will depend on how many employees you have. Even if you are a very small office that does not appear to be subject to any anti-discrimination laws, you don’t want to set the employee up to have a situation that looks enticing to a clever attorney or that, if made public, would make you look bad to others in the community.

Is there anything else that may give this employee protection or raise risk?

Even if everything looks clear, it’s always a good idea to run through a final check to ensure nothing looks like discrimination. Check your handbook, which should include an updated list of protected categories applicable to your business.

Depending on your size and location, this list may include such categories as age, race, color, religion, national origin, citizenship status, sex, gender, gender identity, gender expression, sexual orientation, pregnancy, disability, current or prior uniformed service, marital status or genetic information.

In reviewing your list, compare it to this employee and the makeup of the rest of your team. Are they the only pregnant employee you’ve had in several years? Are they the only male employee on a team of 19 other women? Have they recently disclosed to you they are concerned about their family history of cancer? Would they be the third employee you’ve fired this year, and they all happen to be members of the military?

One of those examples could be true and still have nothing to do with your reason for terminating. We don’t want you to feel trapped by someone’s situation. If they aren’t a successful member of your team, we want to help you remedy that. However, it’s critical to take an objective eye at how this might look to others. If one of these things is going on, do another review of the level of documentation you have regarding this issue and confirm you are acting in accordance with your past practices and current policies.

If you feel comfortable with your decision, prepare to deliver the news to your employee

Prepare a termination letter, prepare the final paycheck, and confirm when benefits end. Know what you are going to say as well as how and who will present this.

One of the many reasons we here at CEDR stress giving a lawful and documented reason for each termination is because an employee who understands why they were fired and that there is documentation of the behavior that led to that firing is much less likely to turn around and sue their former employer. In the absence of those legal, documented reasons, the fired employee will be free to assume the worst of you.

It is perfectly reasonable for a protected employee who has been fired for no given reason to assume they’ve been discriminated against and seek legal counsel. Moreover, it’s perfectly reasonable for a judge to assume an employer who fired someone for “no reason” might be discriminating against a protected group. In the absence of a lawful, documented reason for termination, it’s easy to understand how a protected employee might assume their termination was due to their differences rather than work performance.

Conclusion

Never fire anyone without providing a legal, documented reason. It’s also important to consider timing as well. Firing an employee who recently engaged in protected activities can look suspicious, making a strong case for lawsuits.

If you’ve ever been met with shock when you let an employee go, it might be a good time to reexamine your HR materials. Did your employees understand the duties laid out in the job description? Is your employee manual clear and compliant?

Here at CEDR, our goal is to make sure no employer is surprised with a wrongful termination suit. With a little preparation, on the day you terminate your employee, they will not only know the legal reasons for their firing, but they will also understand that this day was coming for quite a long time.

May 20, 2021

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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