How Can You Fire Someone Without Getting Sued?
June 24, 2014 by Raymond Lee
Have you ever wanted to fire someone but didn’t act? If so, you are not alone. In exploring reasons why CEOs fail in a 1999 article in Fortune magazine, the author reported that CEOs were often unwilling to fix people problems quickly. Interestingly, these CEOs confessed that they had ignored an inner voice that warned them of a problem and refused to listen to the people around them. When the CEOs finally did acknowledge that the person had to go, their top reason not to fire the problem employee was fear of being sued.
Not taking action has its own set of consequences including wasting managers’ time and effort, increased error rates, lost opportunity and negative impact on other workers’ morale and productivity. And, in the worst set of circumstances, you can be sued for not firing someone who needs to go. In the 1993 Yunker vs. Honeywell, Inc. case, Honeywell was successfully sued for “negligent retention,” in this case Honeywell did not fire an employee who they knew had harassed a coworker. Sadly, the harasser later killed his co-worker.
So, how can you fire someone without getting sued? Here are ten things employers should do to mitigate the risk of being sued for wrongful termination:
- Make sure that employees know what is expected of them by providing them with up to date job descriptions and by regularly and clearly communicating your performance and behavior expectations.
- For non-urgent matters, like lateness, use disciplinary procedures that are predictable, follow a logical sequence and are flexible. The typical process is 1) verbal warning, 2) written reprimand, 3) probationary and final written warning, and 4) termination. Following this sequence ensures that termination is a logical consequence and is not a surprise to the employee. For urgent matters, like bringing a weapon into the workplace, you can fire someone immediately.
- If the facts of what the problem employee is or isn’t doing are at all unclear, conduct a thorough and unbiased investigation.
- When you first notice an issue with an employee, begin keeping accurate written records. Document and date every incident and meeting.
- Never fire someone illegally – because they filed a worker’s compensation claim, were a “whistle blower”, are taking FMLA, etc.
- Involve your HR department and follow your company policies.
- Ensure that members of a protected class (race, color, religion, nationality, gender, age, disability, etc.) are treated the same as employees outside the protected classification.
- Conduct the termination face to face, include a witness, and meet in a private setting.
- The termination meeting should last no more than 15 minutes. Tell the employee that he is being terminated, give the real reason, don’t sugar coat it, ask for their explanation, and make it clear that the decision is final. Most workers who sue their former employers do so because they want a full explanation of why they were let go or want a chance to tell their side of the story. If the employee brings up new information, investigate it and revisit your decision later.
- Explain what benefits the employee will receive, when they will receive their final paycheck, offer severance and career outplacement, explain your job reference policy, review confidentiality and non-compete agreements, and collect company property.
No matter what, treat the employee with respect. By following these ten guidelines above you will be armed with the tools you need to mitigate the risk of a wrongful termination lawsuit.
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