Need to Fire an Employee. Follow this Advice to Avoid a Lawsuit.

You’ve reached the point where it’s clear you need to let an underperforming member of your staff go… never a pleasant task. In fact, firing is considered by many to be the single most difficult job employers and/or managers are asked to do during their careers managing staff.

So how does one properly go about terminating an employee?

Here are some vital questions you should be prepared to answer in the affirmative before taking this step:

• Is my decision based on accurate facts and reasonable belief, not suspicion or emotion?
• Have I consistently documented all facts and actions?
• Have I assembled and preserved the supporting records?
• Have I reviewed the employee’s past counseling, performance and disciplinary record?
• Will the employee know why this action is being taken?
• If applicable: has the employee had sufficient time to correct the condition that led me to take this disciplinary action?
• (Where appropriate): Have reasonable steps been taken to attempt to “salvage” this employee? (e.g. training, transfer, demotion or job restructuring).
• If applicable: has the employee had notice of the potential for discipline or termination and given an opportunity to present his/her side of the story?
• Is the firing consistent with any past practice in similar situations?
• Has this decision been discussed with and approved by appropriate levels of higher management and Human Resources (including possible review by outside counsel as necessary)?
• Am I ready to take full responsibility for the decision?

If you can answer “yes” to each of these questions and feel termination is required, do your best to follow these next eight steps:

1. Don’t humiliate the employee (handle discipline/termination privately with minimal embarrassment to the employee).
2. Don’t treat the employee “like a criminal” (i.e., the “perp walk” out of the building), unless there is good reason (i.e., the employee is disrupting the workplace or is being terminated for an act of violence).
3. At time of employment termination, provide written notice of termination.
4. If employee resigns, obtain a resignation letter. If the manager is notified of resignation via phone, send a letter confirming and accepting the resignation.
5. Don’t discuss discipline/termination with others who do not need to know and stop others from doing so.
6. Send all original, signed disciplinary and termination paperwork to terminated employee’s personnel file and/or Human Resources.
7. Ensure unemployment compensation paperwork coincides with the termination reasons given to employee.
8. Properly pay departing employee pursuant to legal requirements.
   1. Employees who quit and those who are laid off must be paid final wages on next regular payday.
   2. Employees who are discharged must be paid final wages by next business day.
   3. Make only proper deductions from final pay.
   4. Comply with vacation pay policy/practice.

Finally, after the terminated employee has left the building, gather staff affected by the termination to address the matter in a simple and straightforward manner. Don’t share any of the reasons for the termination – but do let your team know what has happened. And because a termination often means more work for others in the short-term, let them know what to expect going forward.

If you’re an employer and find yourself concerned about how to handle an employee termination, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing, and one thing alone – we are a Connecticut employer defense law firm – we work to protect the interests of employers throughout the region. What’s more, each of our Connecticut attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

The information provided above is made available by Kainen, Escalera & McHale, P.C. for educational purposes only. It is not intended to provide specific legal advice to your individual circumstances or legal questions. You acknowledge that neither your reading of, nor posting on, this site establishes an attorney-client relationship between you and our law firm, or any of the attorneys in our firm. This information should not be used as a substitute for seeking competent legal advice from a licensed professional attorney in your state nor is it provided for the specific purpose of soliciting your business on any particular matter. Readers of this information should not act upon anything communicated in it without seeking professional counsel.