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Donna Ray Chmura
Business Lawyer
Research Triangle Park, North Carolina
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Guidelines for Firing Employees

Firing employees is one of the most stressful functions of management, fraught with emotional and legal minefields. This article walks the manager through the process and points out areas of special concern.
Written Aug 08, 2008, read 11352 times since then.
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Despite perfect job descriptions, insightful interviewing and hiring practices, stellar leadership and training, and meaningful feedback, there may come a time when an employee must be fired. Firing employees can be one of the most difficult and stressful functions of a manager. Aside from the emotional component, there are a number of legal considerations that must be considered. Proper planning can reduce the employer’s risks of a discrimination suit or lowering morale for remaining employees. This is not the time to skimp on legal counsel.

The first step is to determine the employer’s right to fire the employee. Many states are “at-will” employment states, which means that to some extent an employee can be fired at the will of the employer (at any time, for any legal, non-discriminatory reason). But firing employees without reason, and without having substantial documentation of that reason in their personnel file, is asking for trouble. Some states have public policy or implied contract exceptions to employment at will. If you do not know your legal regime, contact an employment lawyer.

Terminating an employee should be the last resort. Having well-written job descriptions, good interviewing and hiring procedures, providing meaningful coaching and feedback to employees during employment and having routine performance evaluations can help prevent the need to terminate employees.

If you must terminate, here are some general rules to follow. Note that these are just guidelines, and it is always advised to run your scenario by your attorney. Employment law differs state by state, but is also governed by a host of federal anti-discrimination laws.

1. Review the employee’s performance and personnel file. If the employee’s performance reviews or personnel file do not contain evidence of poor performance, the company may have trouble defending itself from a post-employment discrimination suit. If the employee is in a protected class due to age, gender, race, etc., you are well-served to consult an employment attorney prior to the termination to lessen the chances -- or success -- of a post-employment discrimination suit.

2. Consult ahead of time with an employment attorney to consider a separation agreement that exchanges severance pay for the employee agreeing not to sue. These agreements are very difficult to draft, as they must integrate provisions of multiple federal discrimination statutes, which change frequently through legislation, agency regulation, or court interpretation. Employees may have up to 21 days under federal statutes to consider the separation agreement.

3. Notify the direct supervisor, but otherwise keep the news quiet. News of firings should not be in the company grapevine. Make sure to follow all formal policies and procedures of the company.

4. Call the employee into an office, conference room or other private space, along with a witness, such as the HR director or a manager. Witnesses should not be low-level employees.

5. Tell the employee directly that he or she is being fired, and briefly give the reason. Tell the truth, but don’t give a lot of details or focus on them. Be as calm and as unemotional as possible. Be prepared to explain several times why the employee is being terminated. Make it clear that this is a termination, not a disciplinary proceeding. Limit discussions or debates with the employee as much as possible, but answer the employee’s questions as succinctly as possible. Be prepared to say: “I’m sorry, but my mind is made up.”

6. Explain what pay and benefits the employee is entitled to after termination. If the employee has money due, have a check ready at the meeting. It is unlawful in most states to hold back the last paycheck for any reason (such as until the employee returns her uniform). The best practice is to have the employee leave the premises immediately. This limits any spiteful damage the employee can cause, and it will be easier for the remaining staff.

7. Change the employee’s passwords while he or she is in the meeting or just before you start the meeting. Collect all keys, credit cards, phones, computers, disks, manuals, documents, uniforms, tools, and other company materials. Have a box or two ready and have the employee leave immediately. Whether or not to have an officer of the company or a security guard present is your choice. What is important is not to treat employees differently; if one employee is monitored, all employees should be monitored.

8. Fire early in the week and early in the day. If possible, don’t fire an employee and send him or her home for the weekend, where he or she can stew and possibly become violent.

9. After the meeting, review the terminated employee's job description as well as policies on warnings and dismissals. A different job description may have led to a better person for the job. The job may have changed over time and the original job description may no longer be accurate. The disciplinary system also may not have worked well. This type of review may eliminate the need to fire someone in the future.

10. Keep details about the employee's termination confidential to maintain the employee’s privacy. It is important, however, to reassure your remaining employees that their jobs are not in jeopardy. Let them know that the employee has left the company. It's also important to act quickly to get the terminated employee's work reassigned and a job opening posted, if necessary.

11. If the employee files an unemployment claim, the Company should consider whether it wishes to take the time and expense to fight the claim. Note that the first notice from your state employment commission is deceptively simple, and not taking this response seriously could severely impact your options later.

Please note that this article is not a substitute for legal advice related to your specific situation, and no attorney-client privilege attaches to anyone reading this article.

Learn more about the author, Donna Ray Chmura.

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