How-Tos for Firing Employees Legally and Compassionately

Firing employees will always be a tough conversation. Last year, Google tried to avoid this conversation by firing 12,000 employees via an overnight email and locking them out of all company devices. As you can imagine, this conjured up quite a bit of ill will. When it comes time to decide to let someone go, this method isn’t advised.

Firing tends to be an extremely uncomfortable and upsetting experience (often for both the employee and employer alike). You must carry out the firing  employees very carefully to protect your organization and those involved in the conversation. To achieve these two goals, we’ve compiled a few essential guidelines to help you through the process as amicably as possible.

Most states follow some version of “at-will” employment laws. However, contrary to popular belief, this law doesn’t necessarily mean you can just go around firing employees at any time for any (or no) reason. The law isn’t absolute. There are many exceptions to it, which include breach of contract and retaliatory or discriminatory action.

Your reason for an employee’s termination must be:

1. Legally acceptable under local, state, and federal laws
2. True and verifiable

According to federal law, it’s illegal for employers to fire anyone based on any status protected by equal employment opportunity laws, such as age, disability, religion, sexual orientation, and gender (including gender identity and gender expression).

Reasons generally acceptable for firing an employee include poor performance, unexplained absence, or if they’ve committed illegal or criminal activities.

Your company handbook should contain your company’s firing policies. Provide clear details on reasons disciplinary measures will be taken, steps included in the process, and what actions will result in termination.

Most states permit employers to fire probationary employees during the probationary period, so you should include guidelines on probationary periods if applicable.

Employers must have a plan that reinforces the company’s firing policies. The follolwing are some general guidelines for this process:

• Investigate the event. Sometimes terminations are cut and dry and don’t need further investigation. For example, if an employee has constantly been late, this can be substantiated by timeclock records. However, in the case of more complicated situations, it’s important to be prepared in the event the employee files a lawsuit against the company after they’re terminated, especially in instances in which allegations of discrimination, sexual harassment, retaliation, or threats of violence are involved. Prepare prior to firing employees by gathering evidence, such as interviews with others who saw the event occur.
• Document all violations in writing. Record any infraction in writing, sign it, and then have the employee sign it to acknowledge they’ve seen the documentation.
• Create performance improvement plans. The performance plan you put together should give the employee in question the opportunity to adjust their behavior and rectify their errors. Discuss this plan with the employee, have them sign off on it, and store it in their personnel file.
• Keep appropriate records. Store any documentation relating to the employee in their personnel file so the company can support any claims arising from a lawsuit or denial of a claim for unemployment benefits. Do note that depending on state law, unemployment insurance claims may be denied for reasons of misconduct.

This step can often be the most stressful part of firing employees. It’s a best practice to have an HR representative present during the meeting and follow these guidelines for the agenda: 

• Keep the meeting short and factual. 
• Give the terminated employee all relevant information about:
  • Their benefits, including COBRA, severance package, etc., 
  • Leaving the building, returning company-owned items, etc. 
• Allow the employee to ask questions about the end of employment.
• Keep the conversation respectful and listen to what the employee has to say. 

What about Layoffs?

Layoffs are different from firing employees, but equally as important to plan. They don’t need to go down like Google’s, leaving a bad taste in the mouths of more than just those who found themselves without a job.

Be sure to get the professional guidance you need to ensure compliance with local, state, and federal laws.