No matter how wonderful a boss you are or how successful your company is, sooner or later you are going to have to fire employees. Between federal, state and sometimes even local employment laws, navigating through the legal pitfalls of losing bad or sour employees can be tricky. Here are the absolute best ways to shed your dead weight and stay on the right side of the law.

  • Document Everything Properly – Detailed, consistent documentation can defeat many claims of defamation, discrimination, liability for hourly wages, and wrongful discharge. If you have to fire an employee, in court great documentation shows a pattern of clear expectations on your part and repeat failures on your employee’s part.
  • Warnings: An employee file that illustrates a history of an employee’s receipt of appropriate discipline belies a claim of unfair treatment and lack of warning concerning bad performance and termination. This “paper trail” of warnings must include verbal, written, and final warnings.
  • Reviews: Every employee should receive accurate performance reviews on a regular schedule. If an employee’s performance is lacking, don’t give them a neutral or positive review no matter how much you like them. Their review must accurately reflect their performance.

Make Your Policy Manual Work For You (Not Against You) – Don’t just hijack someone else’s policy manual off the Internet. And wherever you got it, take steps to improve that manual now:

  • Disclaimer: Place a clear disclaimer front and center that explains the policy manual is not a contract of employment. This means that none of the provisions in the manual constitute binding commitments that you or the company could breach.
  • At-will employment: If you are in an “at-will” employment state, that at-will relationship is your best defense in a wrongful termination lawsuit. Strengthen the documentation of that at-will relationship wherever you can in the manual. Here are some examples of how to do that:

Affirm each party’s right to terminate the employment at will, with or without notice;

Affirm your right to change the conditions at-will employment;

State that no one in your company may represent anything contrary at an “at-will” relationship except in a formal written employment agreement contract signed by a designated officer. Put employees on notice that they must report any unauthorized promises or representations contrary to the “at-will” relationship.

Reaffirm the “at-will” relationship anyplace that this might become confusing, like where there is a probationary period or grievance procedures. Remind the employee that the presence of those benefits does not change the “at-will” relationship and that you have the right to fire employees at any time.

  • Watch your language: Get rid of all unnecessary language. Don’t say anything without a strong justification. Change all the “employer shall”s and “employer will”s to “employer may”s. Remove anything that could possible be taken for a promise.

Use an Annual Written Acknowledgment – A good acknowledgment covers receipt of the employee manual, the at-will employment relationship, the lack of any promises of tenure or advancement, the lack of uncompensated overtime, the amount of any accumulated leave, and the lack of any discrimination or harassment. It directs the employee not to sign unless it is completely accurate. Signing of the acknowledgement indicates that the employee has read and understood both the manual itself and his duties set forth by it. Finally, the signed acknowledgment affirms that the employee has not witnesses or experienced any kind of harassment or discrimination while employed at the company other than any already formally reported.

Make Sure the Firing Process is Standardized and Fair – If you want to make sure that you appear neutral and nondiscriminatory when you fire employees, ensure you have safeguards in place:

  • Consistency: If one employee receives a written warning for lying, don’t fire the next employee who does the same thing. Treating employees inconsistently opens you up to charges of discrimination.
  • Don’t be emotional: Never fire someone “off the cuff.” Rash, emotional decisions come from an unprofessional place and can result in negative outcomes for the company. When you do decide you must fire employees, wait at least 24 hours before you announce the change. Make absolutely sure.
  • Don’t lie: If you lie about the reason for firing an employee and they sue, it is much easier for a jury to think that discrimination must have been on your mind. it may seem easier to tell someone that their job is being eliminated, for example, than that you find them unreliable. However, if that employee later proves that her job was not eliminated, it’s you who seems unreliable, not to mention untrustworthy, and you’ve lost your strong position.
  • Don’t be defamatory: Of course while you shouldn’t lie about the reason, don’t go too far. It is one thing to point out that your employee has a record of being tardy and is therefore unreliable. It is not safe, though, to say that they are out and out incompetent generally. Don’t open yourself up to defamation claims.

Conduct a Proper Termination Meeting – Even if you’ve done everything else right, you can scuttle your efforts if you don’t deliver the bad news in the right way.

  • Be there: Termination meetings should always be face to face.
  • Use witnesses: Termination meetings should always take place in front of at least one witness who is also a member of the staff, and preferably two or more. Upper management are the best choices for witness roles. Peers of the person getting fired can feel uncomfortable and can make the process even harder for the employee.
  • Keep a record of the meeting: It is best to record the termination meeting. Whether or not it is recorded it is also best to keep detailed notes.
  • Be brief: Keep to the point. Don’t ramble on, argue, or get personal. Be polite and respectful.

Nothing can guarantee that your company never gets sued after firing employees. However, if you follow these procedures, you will minimize your risk as you minimize the bad feelings associated with the process. For more advice around this subject, you can easily consult with one or more employment lawyers today on UpCounsel.

About the author


Karla Lant

Karla Lant is an Adjunct Professor for Northern Arizona University and a freelance writer. A former trial attorney in major felony criminal defense, her areas of legal expertise include forensic science, intellectual property, biotechnology, and constitutional law. Lant also focuses on tech trends, science and education in her work.

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