What Should You Consider Before Firing an Employee?

Laws About Firing Employees

There are plenty of laws at the state and federal level that pertain to firing employees. Some states have rigid guidelines and restrictions even above what’s mandated at the federal level.

Other states have more lax firing laws, but regardless, there are some general concepts to be aware of. If you or one of your supervisors or managers fires an employee in a way that could be viewed as illegal, there can be huge financial and legal ramifications.

In the U.S., most employees are considered at will. Theoretically, they can be fired at any time and for any reason as long as it’s not considered retaliatory or discriminatory. With that being said, some specific laws dictate what would constitute wrongful termination.

Wrongful termination laws and anti-discrimination laws say that you can’t fire an employee because of their race, gender, national origin, disability or age. These are considered protected classes by the federal government. Employers are also legally prohibited from firing an employee because of pregnancy, or because of a medical condition related to pregnancy or childbirth.

Many states have laws that go beyond this, so employees are protected against being fired for reasons like sexual orientation, and states can also have laws that go even beyond this.

Along with discrimination laws, there are also retaliation laws. It’s illegal for an employee to be fired for what’s described as asserting his or her rights under anti-discrimination laws at the state and federal level. It’s been possible in the past for employees to create successful retaliation claims even when they couldn’t prove the discrimination claim.

An example of this would be a female employee who claims that she’s not making equal pay to a man in a similar role. Even though a business might be able to prove this wasn’t discriminatory, the same business could lose the element of a retaliation lawsuit.

Employers can’t fire employees for refusing to take a lie detector test under the Employee Polygraph Protection Act, and under the Immigration Reform and Control Act, employers can’t fire people because of their alien status.

Other wrongful termination laws include:

  • An employee can’t be fired for making complaints about their employer’s OSHA violations if the employer isn’t adhering to state or federal standards for a safe workplace.
  • Many states have laws in place protecting employees from being fired when the termination violates public policy. These are really pretty subjective laws, and they leave a lot of room for gray areas. In general, however, examples would include terminating an employee for refusing to commit an illegal act or terminating an employee for complaining about a legal action being committed by their employer.

What To Consider Before Firing An Employee

Along with state and federal laws, the following are some things to be aware of before an employee is fired, and some things to consider:

  • Is the employee fully aware of and trained on disciplinary and termination policies? A lot of employers drop the ball here. They may train their employees on things related to their job and the operations of the company, but they don’t let them know what their policies are. All businesses need to have a clearly outlined disciplinary policy, and employee should be trained on it as part of their onboarding. This protects employers when an employee says they didn’t know what they were doing was wrong, or they weren’t aware of policies related to discipline and being fired.
  • Employers also need to look at firing as the very last resort. There need to be other things done before an employee is fired, which will be discussed in our post on alternatives to firing. Firing shouldn’t be looked at as something done casually, flippantly or in the heat of the moment because it leaves the employer open to a lot of liability.
  • Employers are right to have anxiety about firing employees are considered part of a protected group. It’s essential for employers to make sure they’re firing someone because of their performance, and not for any other reason or something that could even be misconstrued as related to any other reason.
  • Don’t fire an employee any other way than face-to-face. Firing shouldn’t be done by phone call, email or even a letter. Having a face-to-face meeting can not only help explain the why’s of the person being fired more clearly, but it’s also more courteous. You have to think about how the fired employee is going to handle the situation, as well as your other employees. You don’t want to do something viewed as sneaky and then have your other employees become suspicious or untrusting. While an employee should be fired in a face-to-face setting, a witness should be part of it.
  • An employee should never be fired without warning. Blindsiding an employee, even if the problem is their poor performance, is not only not the best way to deal with an employee at an interpersonal level. It’s also simply leaving you open to more liability. You need to have a well-documented and recorded trail of what’s led to an employee’s firing and that should include performance feedback documented over time.
  • Have you done what you can to avoid a firing? Is the firing really a last resort? Sometimes an employee can stay at a company but move into a different position and be much happier and have better performance. Is this an option?

Finally, when you’re firing someone, you’re also going to have to think about not only lawsuits but security risks as well. Employers are going to have to put plans in place that will allow them to protect the entire workplace if an employee responds poorly. Beyond what happens during the actual firing, you’re going to have to think about how you’ll get back devices and files, and how you’ll protect your company against the loss of any confidential information.

There’s a lot that needs to go into firing an employee, and that’s why all key employees who could be responsible for firing should be thoroughly trained.

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