Firing Without Getting Burned

Before firing an employee make sure you have a code of standards in place to avoid wrongful discharge litigation


Wrongful discharge lawsuits are an unfortunate fact of life for today’s business owners. In light of this, employers fared with the necessity of terminating an employee should keep two objectives in mind before initiating the process. First, it is essential that the employee be made to understand the reasons for the discharge (thus reducing the likelihood that he or she will sue). Second, the discharge should be handled in a manner that minimizes the likelihood of an employee courtroom victory in the event he or she does sue. There are several steps that employers can take to help insulate themselves against wrongful discharge litigation. Below are some procedural basics.

Establish a discharge standard

The employer should decide on a specific policy regarding employee discharges, and set out that policy clearly in writing. Many employers have an, at will” policy. This means that employment relationships of unspecified terms may be terminated by either the employer or the employee at anytime, with or without cause. An employer who has established an at-will standard should formalize it in written contracts signed by employees.

Adopt consistent conduct/performance requirements

Employers usually have an unwritten discharge practice that is more cautious than its official discharge policy.  In the interests of fairness and consistency, employers should determine the real, minimum level of performance and conduct they expect from employees.

The key to enforcement of this standard is proper training of super-visors, and giving performance evaluators on a regular and consistent basis. Such evaluations must accurately state how an employee is performing relative to expectations. In each case, it should be discussed in a timely manner with the employee, who should then be required to sign it. If performance problems become evident, supervisors should tell the employee about the problem, what he or she has to do to correct or improve performance, and what will happen if he or she does not improve. Employees should be given enough time to improve, and they should be kept informed of their progress.

Some forms of misconduct are so harmful that the employee must be discharged immediately (theft, for example). With other types of misconduct, however, discharge decisions are less clear cut. Employers should set out which types of misconduct will lead to immediate discharge and apply a consistent discipline level for less serious misconduct. When discipline becomes necessary make certain the employee under-stands the underlying reasons. In close cases, apply progressive discipline rather than immediate discharge. If an employee exhausts progressive discipline, the employer should issue a final warning.