What You Need to Know Before Firing an Employee

Firing an employee can cost a company dearly and therefore should never be taken lightly. There are two paths when it comes to firing an employee. The first is that an employee can be terminated for evidence-based and documents cause. Terminating an employee for cause often occurs swiftly once all evidence is collected. The other form of involuntary termination is sometimes referred to as termination without cause and follows a process of warnings and coaching.

Termination for Cause

Termination for cause is when the employer considers that an employee’s actions represented a severe error in action or judgment. The definition of cause should be something that you can point out, in either an employee handbook or a job description. Termination for cause is due to errors in judgment, or actions that warrant immediate termination. Some common examples of situations where immediate termination for cause include:

• Conviction of a felony
• Failing a required alcohol or drug test
• Harassment, including sexual harassment
• Proof of giving false information
• Proof of stealing from the company or staff members
• Falsifying records
• Making threats
• Exhibiting violent behaviors
• Extreme verbal or offensive behaviors

Most employment is considered “At-Will”, which means that the employer has the right to fire an employee at any time, for any reason. However, the terminated employee may be eligible for unemployment insurance as a result of their termination. That said, when it comes to firing an employee for cause, the terminated employee will most likely be ineligible for unemployment compensation, provided you have a signed copy of an employment agreement or employee handbook that demonstrates they violated clear policy. Since the number of unemployment claims a business has will affect its future unemployment premiums, employers that terminate an employee for cause place all the blame on the employee for the termination.

Termination Without Cause

In most cases, firing an employee is the result of following a progressive disciplinary policy. When an employee’s performance does not meet their employers’ expectations, the employer provides the employee with a warning or notice of the unacceptable behavior or deficiency in performance.

Verbal warnings are often the first step in the disciplinary process and are delivered by a manager. Delivering a verbal warning does not mean that the warning is not documented. In fact, a verbal warning is a written document that is signed by the employee and manager and placed in the employee’s permanent employee record.

For more serious situations or if the employee fails to heed the verbal warning, the manager may issue a more formal written warning. A written warning will include the reason for the warning, any prior discussion on the subject such as verbal warnings, a list of the corrective actions that the employee needs to take, and the consequences for failing to improve their performance or correcting their behavior. Written warnings are signed by the employee and manager and placed in the employee’s permanent employee record.

If the employee fails to follow the disciplinary process laid out in the warning(s), the employer can choose to terminate the employee.

Following a prescribed disciplinary process is necessary to avoid the potential of a wrongful termination lawsuit. Many employee lawsuits stem from the employee’s perception that they did not receive fair treatment by their employer. Therefore, the best way to protect the business from a wrongful termination lawsuit is to have a well-documented disciplinary process.

Employee Rights

There are many Federal laws that protect an employees’ rights that you must be aware of. Some Federal laws only apply once a business reaches a certain number of employees, but some are applicable to businesses with just a single employee.

Termination Process

When it is determined that the employee must be terminated either for or without cause, you must consider the following actions when it comes time to part ways.

Pre-Termination Activities

Many states require that the employee’s final check be given to the employee on their final day of employment. You should have payroll cut a final paycheck that includes payment for all work up to the point of termination, as well as any unused vacation if applicable, deductions for any advances, etc. and have it ready to hand to the employee at the termination meeting.

Prepare a Termination Form which details the violations that contributed to their terminations. If the termination is for cause, be sure to state that they are not eligible for Unemployment Insurance, since they are being fired for cause.

Since a terminated employee may seek vengeance on their former employer, make sure that you terminate the employee’s access to your company’s computers while you are delivering the termination message. Be sure to terminate any logins and accounts to prevent them from accessing your systems from home.

To avoid any risk that the employee may claim that the termination was not handled properly, you should make arrangements to have an additional person in the room as a witness when you terminate the employee. If you have a person that handles your companies’ human resources activities, this is often the best witness. Having more than one person at the termination meeting also avoids the possibility that the terminated employee will make a scene or act out inappropriately.

Plan to deliver the termination message face to face. While a face-to-face termination message is always the desired process, there may be times when a face-to-face termination can’t be done. An example may be that you have a three-day no-show no-call policy in your employee handbook, but the employee was arrested and did not contact you. In these types of cases, the termination may be handled with a phone call or a termination letter.

The Termination Meeting

Do not make the termination meeting last longer than it needs to be. In the first few words, you should make it VERY clear that the employee is being fired and that they no longer have a job at your company.

I have seen too many managers talk about the decision process they went through and bury the message of firing an employee in a long-winded discussion. This can leave the employee unsure if it was another disciplinary meeting, or if they are fired. The first words out of my mouth when firing an employee is always. “You no longer have a job here, and it was my decision to terminate your employment.”

While it is easier to shed the blame for the employee’s termination on someone else, it is best to make it extremely clear that you were the person that made the final decision. In this way, the employee is aware that there are no other avenues in the company to appeal to the termination decision.

After making it clear they are being fired, you should state why they are being fired. This must be clearly stated from documents of warnings, and the violation in the Employee Handbook.

Present them with the termination form you prepared before the meeting that lists the reason for the termination such as their continued unprofessional behavior, stealing, or that this is the final step in the disciplinary process, etc. and ask them to sign the termination form. The employee and the company should each have a copy of the termination form. If the employee refuses to sign it, simply note that at the bottom of the forms that the form was given to the employee at the time of termination.

I will then hand them their final paycheck.

Many employees will attempt to negotiate to keep their job or ask you to explain why they are being terminated. Some may even resort to crying. The employee may also try to implicate other employees in a last-ditch effort to save their job. This is where the witness should record any and all allegations for future investigations. However, as the termination manager, avoid the temptation to get into a long-winded discussion and simply say that you made the decision, which is final.

At this point, you have made it clear they are being terminated and I recommend getting up and escorting them to the office door.

Exiting the Facility

You will want to minimize any contact that the fired employee will have with other employees after your termination meeting.

Either personally escort, or make arrangements to have the employee escorted to their locker or desk to collect their personal items. If necessary, it is a good idea to have a box or two available for the employee to place their personal items in. Make getting the fired employee off the premises as quickly as possible your priority, with the least amount of interaction with other employees as possible.

Never leave the employee alone after the termination meeting. As the person is packing up their personal items, resist the urge to make small talk. Termination is a serious matter and the former employee is likely processing a lot of emotions. Allow then to deal with their emotions in their own way by not making small talk during this time. Simply observe them packing up their personal items, and make sure they do not try to take any company items.

Some employees will try to take reports, contact lists, and other company assets. If they attempt to take anything other than their personal items, instruct them that it is company property and they are no longer authorized to have access to it.

Be sure to collect any keys, access cards, company cells phones, computers, etc. from the employee prior to there departure from the facility. Once they are packed up, escort them out the door of your facility.

Do you have a process for firing an employee?

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I would like to acknowledge Marcy Flitchall the CEO/Senior Consultant for HRchitects, Ltd., and a SCORE collogue for her gracious assistance as a reviewer to make sure that the legal issues conveyed in this post were an accurate representation of HR law.

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