How to Fire an Employee Legally and Fairly

In an ideal world, every employee would be a perfect, productive fit – and you’d never have to let someone “go” for missing the mark or violating the rules. But we know that’s not realistic.

No matter how careful you are when hiring and growing your workforce, you’re bound to encounter difficult situations that ultimately lead to termination. Today, it’s more important than ever for employers to be on firm legal footing when firing employees or taking other disciplinary action.

A sloppy or unfair firing could put you at significant risk if a disgruntled employee turns around and files a lawsuit. Whether taking notes during a counseling session, creating a written warning or drafting a final termination notice, you should take the view that any documentation could someday be used as evidence for, or against, you.

In most cases, specific disciplinary measures lay the groundwork for fair and legal firings. Discipline puts the employee on notice of the severity of the problem, as well as the consequences for not correcting it.

If the problem persists and terminating the employee becomes necessary, you’ll have a record of the problem and the actions you took to address it.

Documentation is key

Most employers follow progressive discipline wherein an employee receives a series of warnings before termination. For example, the employee may get a verbal warning for a first offense, a written warning if the problem continues, a final written warning and, as a last step, termination.

Cutting corners with documentation is the single biggest mistake managers make when handling progressive discipline and terminations. You need to recognize that your company may have to explain a termination decision long after it occurs. In the case of employees terminated for poor job performance or misconduct, this means having on file all performance reviews, notes from counseling sessions and written warnings leading to the termination decision.

For complete and effective documentation, be sure to cover all the following elements:

The facts – Include the date, time and location of the problem. Where applicable, cover the five W’s (who, what, where, when and witnesses). Be as precise and thorough as possible. Your documentation should indicate each date the employee was late, and how late he or she was each time.

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