It’s never fun firing an employee. Letting someone go is a difficult process for both you and the employee being fired. There are lots of questions surrounding the process, and many people tasked with firing an employee would rather stick their head in the sand than be the bearer of bad news.
But letting unsatisfactory employees go is a necessary part of doing business, and firing an employee with poise and an appropriate level of professionalism is important. There’s a fine line between being sorry to deliver the news and apologizing profusely or stating you disagree with the decision.
At the same time, you have to protect yourself as an employer. Employees regularly seek attorneys to help them pursue wrongful termination suits against their former employers. To protect yourself from possible litigation, you must follow these steps before firing an employee.
Here are 4 things you need to know before firing an employee.
4 Things You Should Know Before Firing an Employee
1. Make sure you’re legally allowed to fire the employee according to “at-will limitations.”
A. Discrimination – Federal law prohibits firing workers because of their age, race, religion, sex, national origin or a disability that does not influence their job performance. Some states add other limitations—for example, in many states, sexual preference cannot be a factor in firing an employee.
B. Public policy – Your reason for firing an employee can’t violate public policy. That means if the court orders you to garnish the wages of a worker who owes child support, you can’t just fire him to avoid the paperwork.
C. Just cause – You must have a just cause for terminating an employee, and the decision must be made in “good faith” and not in “malice.” Termination for cause is when an employer decides to terminate an employee because of something that happened on the job.
2. Know your just cause limitations.
Just cause is limited to things employees do on the job that negatively impact the company or coworkers. With just cause terminations, you have to be able to be demonstrate that the termination is in good faith and not out of malice.
Reasons for just cause terminations include:
- Failing drug tests
- Falsifying records
- Sexual harassment
Check out this example of an employee vs. Kmart:
In Kmart Corporation v. Ponsock, the Supreme Court of Nevada handled the breach of an implied covenant of good faith and fair dealing in every employment relationship. Employee Ponsock was tenured at Kmart, hired to work until retirement. At trial, the jury found that Kmart terminated Ponsock in order to avoid paying him these retirement benefits. As part of his case, he claimed that Kmart’s discharge was in “bad faith” and that, even without a contract, the termination gave rise to tort liability.
3. You don’t have to give notice.
If you’re terminating an employee for cause, you aren’t required to give them notice.
Notice is only required if the termination is part of a mass layoff or other corporate closures covered under the Worker Adjustment and Retraining Notification (WARN) Act.
However, consider your employees’ circumstances. Will immediate termination without notice create problems for their family and living situation? If possible, try to give an employee some type of notice before firing them.
4. Impose a concrete discipline process.
It’s within your rights to terminate at-will employees any time you deem there to be a just cause, but to win your employees’ loyalty and ensure their best performance you should impose a concrete discipline process that all supervisors and managers stick to. This will ensure that your employees are never surprised by a “sudden” termination, and allows you to give problem employees a second or third chance before letting them go.
For example, you might include three tiers to your discipline plan: A written warning, suspensions, and finally, termination. When an employee has already been suspended and faces disciplinary action again, they’ll know termination is the policy and will be less likely to seek a wrongful termination lawsuit.