One of the biggest indicators of a successful startup or company are its employees. Without hard-working and dedicated employees who believe in your cause, it will be very hard to lead your company to the top. Unfortunately as part of the growing process, finding these type of employees isn’t always the easiest task and it may come time to let a certain employee or two go.

To protect yourself and your company when firing an employee, you can take the following precautions:

Make sure you are firing for a legitimate reason. Since most employees in the U.S. are considered “at-will”, either the employee or employer can end the employment at any time without cause. It will be considered wrongful termination if you fire the employee as retaliation due to a protected action, based on some type of discrimination (race, gender, sex, etc.), or if it violates the employee’s employment contract. You don’t want to be stuck having to defend yourself against wrongful termination because it can cost you thousands of dollars and ruin your company’s reputation.

Keep records of the employee’s performance. It’s important to keep copies of any performance reviews you have provided the employee, whether they are positive or negative. This is a good way of protecting yourself later on down the line in case the employee hasn’t been on his or her best behavior. A paper trail of this will give you a legitimate reason for firing an employee because it shows you have provided them with multiple warnings.

Give the employee the bad news in a private setting. Pick a neutral place like a conference room to let the employee know that his employment has been terminated. It’s not a good idea to approach him in his cubicle or any common area where the conversation may be overheard by others. You cannot be sure how the employee will react to the news as it can be quite embarrassing or upsetting.

Don’t be alone when you break the news. It’s a wise idea to bring someone along with you so you are not alone when you tell your employee he is being fired. The head of HR is a good person to include since he can explain the next steps in the process. The employee’s supervisor may be another good option. In general, it’s smart to have a witness there with you so that the employee doesn’t accuse you of retaliation.

Prepare all of the details ahead of time. Make sure you have thought about everything from when the employee will come collect his personal belongings and return company ones, to when he will be receiving his last paycheck. This whole process is awkward and it could be a lot smoother if you can supply the employee with this information before he has to come asking for it.

Keep it short and sweet. Most of the time, you can’t help but feel bad even if the employee deserved to be let go. But sometimes when we feel bad or are nervous, we end up talking too much. You don’t want to end up saying something that could be used against you later on down the line. Don’t offer to help when you probably can’t. Even though you may mean well, it isn’t something that will truly make the situation any better.

Firing an employee definitely isn’t a walk in the park, but keep these things in mind and you will at least be well-equipped with evidence if the employee were to fight back. At the end of the day you have to remember to keep your business’ best interests in mind. No one wants to be seen as the bad guy but unfortunately, it is only one of the many hats you’ll have to wear when leading a successful company.

If you find yourself with a unique challenge and need quality legal counsel regarding employee termination, you can freely connect with one or more employment attorneys that can assist you with transitioning an employee out of your company.

About the author


Zoya Afshar

Zoya Afshar is a Licensed Attorney and Head of Content at UpCounsel. Prior to joining UpCounsel, Zoya worked in a variety of fields of law including Bankruptcy, Criminal Defense, and Employment Law. Her love for all things media and marketing related began in her undergraduate years when she worked for CNN's Larry King Live.

View all posts

Post a Job on
UpCounsel and get
high quality legal work done

Post a Job on UpCounsel
/* ]]> */