October 4th, 2020
How to Fire an Employee the Correct Way
Following through with firing an employee is seen as one of the most difficult things that managers are asked to do.
That’s because it’s tough to know what to say – not only because as a boss you don’t want to be cruel or unfeeling – but also because there could be legal ramifications if you don’t do it correctly.
How to Fire an Employee Legally
One important thing to remember is that firing someone should be a last resort. It should be done only when the employee has been informed – repeatedly and in writing – that there are serious performance and/or productivity issues and fails to make the required changes. Other reasons to fire an employee include being unprofessional, gross misconduct, stealing, or because there are general layoffs.
You also want to ensure that the firing is legal. Illegal firing of an employee includes reasons based on gender, race, religion, marital status or age. You also can’t fire someone for personal reasons (getting on your last nerve doesn’t count) or you – and your company – could face a wrongful termination lawsuit.
Firing an employee without warning is not illegal, but the repercussions of such action can be serious. It can damage the morale of the team and erode trust between employer and employees. At the same time, if an employee has signed a contract with the employer, then the employer must abide by the terms stated specifically in the contract, which includes whether the employee can be fired without warning or not.
Steps to follow when firing an employee
Before firing an employee, there are several steps that must be taken to ensure that federal law is followed. Here’s how to fire an employee legally:
Check federal and state laws.
The Department of Labor’s website offers a “termination” topic page that offers information on the benefits that must be offered to terminated workers and discusses laws prohibiting discrimination. In addition, you will need to consult the laws of your state to ensure you’re not in violation of any rules and are following guidelines.
If there is poor performance or productivity issues, there should be written reports that address the specific issues and what needs to be done by the employee to meet expectations. For cases of gross misconduct (sexual harassment, hate speech, verbal abuse) and stealing, employees should have already been informed of the consequences of such actions when they were onboarded. Covering those topics in employee orientation is usually considered a warning. In the case of layoffs, try to issue warnings as soon as possible if you know terminations are coming.
Once the decision has been reached that someone needs to be fired, then begin the gathering and documenting interviews with supervisors and colleagues about the employee performance or behavior. Also gather emails or other related materials such as computer files that serve as evidence of infractions or poor performance.
Be direct and honest.
A firing should be done privately, in person and with at least one witness. Write out the points you want to make so that you don’t get into unrelated matters and make the issue confusing for the worker. You can say something like, “Joe, we’ve decided to let you go. Today is your last day. Thank you for the work you’ve done here and I want to leave on friendly terms. I have some logistics to go over with you. Afterward I can answer your questions.” (Expect to be asked “why” as well as questions about benefits or unemployment.)
Handle the details.
Many employees will have some company property, whether it’s a laptop, keys, cellphones or pagers. The employee needs to turn those over immediately. If you offer a separation agreement, then that needs to be stated. The employee should be asked to leave after gathering personal property and asked to reach out – if desired – to colleagues after work hours instead of trying to say goodbye during the work day. If the employee just wants to leave immediately, schedule time after hours for him or her to come back and collect personal items.
Finally, show respect for the departing worker, no matter how the employee reacts to the termination. Never badmouth the person or offer any details to others about the firing. Not only is it unnecessary and unprofessional, but anything you say can be used against you in a wrongful termination lawsuit.