How to take the sting--and legal risk--out of terminations.

• Date: 01 November 2021
• Author: Hyman, Jon

Is there a "best" way to fire an employee? There is no conversation more traumatic for both the employer delivering the message and the employee receiving it. That said, there are some best practices that can help for all involved.

1. Before you pull the trigger, ask yourself, "Is this employee going to perceive that the decision was fair?"

   Did the employee have notice of the issues that caused the termination? Had the employee recently complained or otherwise engaged in protected activity? Mock-jury your decision. If the employee sues, would a jury think your decision was fair?

2. Do not mistreat the employee at the time of termination. Terminated employees deserve a face-to-face discussion. At all costs, avoid firing by a letter, phone call (or, worse, voice mail), email, text or any other not-in-person communication.

   In most cases, do not "perp walk" a fired employee. Some employees deserve to be shown the door swiftly. They stole, they harassed someone or they assaulted someone. For most terminations--the "it just isn't working out" kind--you want to do what you can to avoid litigation or the employee trashing you on Glassdoor. Not perp walking the fired employee is a great first step.

3. Offer the employee some explanation for your decision. But understand that if sued, you better be able to back up that decision. Otherwise, a judge or jury might find your decision is actually a pretext for an unlawful reason.

   Offering no reason leaves an employee to scratch their head, wondering what was the true reason. On the flip side, offering too much detail could lead to issues of proof in litigation down the road, and could turn...