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A Checklist for Employers Before Discharging Employees

Deborah Neyens is an attorney, educator, and freelance writer with a B.A. in political science and a J.D. from the University of Iowa.

When an employer doesn't know how to fire an employee, the risk is employment litigation that is costly, time-consuming, and distracting to the entire organization. Employers can reduce their risk of wrongful discharge litigation by asking a few questions in advance of firing an employee. An employment termination checklist lets an employer know when to fire someone by identifying all the legal risks and issues in advance. Whatever the reason for employee discharge (poor work performance, employee misconduct, or job elimination), the employer can take any additional steps needed to limit legal risk before it's too late.

How to Fire an Employee Legally

How to Fire an Employee Legally

Questions for Assessing Potential Legal Issues When Firing an Employee

With respect to any discharge decision, ask the following questions:

  1. Is the employee a member of a protected class?
  2. Has the employee been off work as a result of the birth or adoption of a child, the employee's own serious health condition, or the serious health condition of a spouse, child, or parent?
  3. Has the employee indicated, or is there credible, objective evidence that the employee is unable to perform, all or part of the job duties due to an injury, illness, or disability?
  4. Has the employee filed for or received worker's compensation benefits?
  5. Has the employee reported any illegal or unethical activity or reported a violation of company policy or rules?
  6. Has the employee filed a complaint with an external agency or a lawsuit regarding any work-related matters or participated in an external complaint investigation or other proceeding?
  7. Is the employee eligible to receive a commission or bonus if he/she continues employment?
  8. Is the employee retirement-eligible or close to meeting the criteria for retirement eligibility?
  9. Has the employee engaged in union activity (such as organizing or picketing) or other protected, concerted activity?
  10. Has the employee been complaining to the employer or others about safety concerns or other matters of public interest (whistle blowing)?
  11. Were any promises (written or verbal) made to the employee regarding continued employment, employment for a particular duration, or the reasons for which the employee could be fired?
  12. Is the stated reason for the discharge contradicted by any documentation pertaining to the employee's performance or work history (such as performance reviews, salary increases, bonus awards) or other documentation?

If the answer to any of the above questions is YES, the employee may be able to state a claim for discrimination or wrongful discharge. Consult with legal counsel to determine the risk of discharge under such circumstances.

Considerations in Performance-Related Discharges

Before discharging an employee for poor work performance, consider the following questions:

  • Is the expected job performance consistent with the job classification?
  • Have the expectations been communicated to the employee?
  • Has the employee been provided the necessary training and other resources to perform at the expected level?
  • Has the employee's performance actually failed to meet the expected standard?
  • Has the employee been provided notice of the performance deficiency and given a reasonable opportunity to improve?
  • Has the employee been advised of the consequences of a failure to improve performance to the expected level?
  • Is there documentation of the performance issues and efforts to resolve the issues?
  • Have all employees with similar performance deficiencies been treated similarly?

The answer to each of the above questions should be YES before proceeding to discharge.

Considerations in Conduct-Related Discharges

Before discharging an employee for misconduct or work rule violations, consider the following questions:

  • Is there a written work rule or policy?
  • Is the rule reasonably related to the safe and efficient operations of the employer?
  • Was the employee aware or reasonably should have been aware of the work rule or policy?
  • Was the employee given adequate warning of the consequences of a rule violation? (This may be shown by the employee’s knowledge of the rule, communication of rule by the employer, consistent enforcement of rule, and training.)
  • Was a fair and objective investigation conducted and the employee provided an opportunity to tell his/her side of the story?
  • Is there substantial evidence or proof of guilt based on the facts discovered during investigation, considering the employee's motives and the purpose sought to be achieved by the rule?
  • Is discharge a reasonable penalty, considering the seriousness of the offense and the employee’s past record, length of service, and intent?
  • Is discharge consistent with treatment of other employees under similar circumstances?

The answer to each of the above questions should be YES before proceeding to discharge.

Considerations in Discharges Due to Job Elimination

Before discharging an employee due to job elimination, consider the following questions:

  • Is there an objective reason for the job elimination (such as decline in business, technological change, geographic relocation, etc.)?
  • Is there documentation of objective selection criteria for picking the employees whose positions are being eliminated (such as seniority, past documented performance, etc.)?

The answer to the above questions should be YES before proceeding with the job elimination.

  • Is there evidence to suggest that the job elimination is a subterfuge to discharge the employee for another reason?
  • Is there an intent to back-fill the employee's position?
  • Does an analysis of the employees selected for job elimination indicate a statistically significant adverse impact on the basis of age, race, or sex? (Note that adverse impact analysis should be conducted under guidance of legal counsel so that it may be protected under the attorney-client privilege.)

If the answer to question is YES, discuss with legal counsel the risk of proceeding with a job elimination under such circumstances.

  • Is the employee covered under a collective bargaining agreement that contains specific provisions relating to reduction in forces (such as required notice, manner of selection for a reduction in forces, eligibility for severance benefits, etc.)?
  • Is the job elimination part of a Plant Closing (the permanent or temporary shutdown of a single site of employment resulting in loss of employment for 50 or more employees) or Mass Layoff (an employment loss at a single employment site of at least 33% of the employees and at least 50 employees) such that notices under the Worker Adjustment and Retraining Notification (WARN) Act will be triggered?
  • Will the employee be asked to sign a release of employment-related claims in connection with an exit incentive or other employment termination (severance) program offered to more than one employee such that the requirements of the Older Worker Benefit Protection Act (OWBPA) will be triggered?

If the answer to these questions is YES, review with legal counsel to ensure all legal and contractually bargained for requirements are met.

Conclusion

By proactively identifying and addressing legal risks before making the final discharge decision, employers can reduce their chances of wrongful termination litigation and strengthen their defenses in the event a lawsuit is filed.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

© 2011 Deborah Neyens

Comments

Deborah Neyens (author) from Iowa on August 04, 2012:

Thanks for reading and commenting, love. I hope it helps employers make the right decisions.

Lovelovemeloveme from Cindee's Land on August 04, 2012:

This was a really detailed informative HUb. i think with recession and a lot of employers trying to cut back on costs by cutting back on employees, a lot of people will find this hub resourceful. thanks

Deborah Neyens (author) from Iowa on July 26, 2012:

So glad to hear I was able to help. Thanks for the comment, Saida.

Saida Jones on July 26, 2012:

I recently dealt with a situation at my place of employment and I found this hub to be very useful.

Deborah Neyens (author) from Iowa on July 25, 2012:

I'm sorry to hear about your experience, Mary. That's wrong and illegal. Thanks for the comment, vote and share.

Mary Hyatt from Florida on July 25, 2012:

All employers should read this. In my experience, I have seen employees "let go" for really stupid reasons. I was forced into early retirement because I was costing my employer too much to keep me because of the cost of my benefits. Just not right.

I voted this UP, and I will share.

Deborah Neyens (author) from Iowa on July 25, 2012:

Haha. And I learned how to reply promptly to comments! Thanks for stopping by again, J. S. Matthew. : )

JS Matthew from Massachusetts, USA on July 25, 2012:

You've come a long way since then DeborahNeyens! HubNugget, Hub of the Day...Keep up the great work!

JSMatthew~

Deborah Neyens (author) from Iowa on July 25, 2012:

Christy, you are so right. So often an employer fires someone as a knee-jerk reaction to something without thinking it through properly first. Thanks for the comment.

Christy Birmingham from British Columbia, Canada on July 25, 2012:

Hey Deb, this hub will be useful for employers to ask themselves before dismissing employees. It really can't be a spur of the moment decision, and you outline questions to ask very well.

Deborah Neyens (author) from Iowa on July 25, 2012:

Thanks, John, I'm glad you enjoyed it!

John Sarkis from Winter Haven, FL on July 25, 2012:

Hi Deborah, and what an interesting article this one is.

You make some really good points in your article.

John

Deborah Neyens (author) from Iowa on July 25, 2012:

Curiad, so sorry to hear about your experience. Your former employer probably wasn't talking to their lawyer when they did that! Thanks for your comment.

Deborah Neyens (author) from Iowa on July 25, 2012:

Thanks, Daisy. Yes, I definitely was in attorney mode when I wrote this. I haven't done a legal hub in a while. I'm thinking I should. I'm speaking to a college class tonight about employment law issues.

Curiad on July 25, 2012:

Interesting Deb, I was fired while on temporary disability but the company had far more resources that I did to fight it.

Daisy Mariposa from Orange County (Southern California) on July 25, 2012:

Deb,

I can see you were wearing your *attorney hat* when you wote this Hub. Thanks for providing us with this very helpful information.

Deborah Neyens (author) from Iowa on July 25, 2012:

Thanks for reading and commenting, midget. If all employers used this sort of checklist, it would spare a lot of the aggravation and frustration of employment litigation.

Michelle Liew from Singapore on July 25, 2012:

This should be put up in every employer's workstation to protect them against employees who want to take advantage of situations. Very useful and interesting advice. Thanks for sharing!

Deborah Neyens (author) from Iowa on July 25, 2012:

Thanks, Linda! I hope it helps both employers and employees.

Deborah Neyens (author) from Iowa on July 25, 2012:

Sherri and Julie, thanks so much for reading and commenting. There are so many minefields out there for employers these days that it really helps to sit back and assess things objectively before taking adverse employment action. That objective review ultimately helps protect the employee's rights, too.

And, J.S. Matthew, thanks for being the first person to comment on this hub all those months ago. I'm sorry I didn't reply until now. That was my first day on Hubpages!

Linda Bilyeu from Orlando, FL on July 25, 2012:

Hi Deb,

The information you supplied will hopefully help someone out along their journey. Thank you for creating this hub. Up! Useful! Interesting!

Sherri from Southeastern Pennsylvania on July 25, 2012:

You presented valuable information not only for anyone who has hiring / firing responsibility but also for any employee. These considerations certainly protect the employer's interest, but they also point to potential employee rights violations. Voted up and useful.

Jools Hogg from North-East UK on July 25, 2012:

Useful advice for managers - I could have used this recently! However, I have left the job so no more aggro :o)

JS Matthew from Massachusetts, USA on August 15, 2011:

This is well-researched and very informative! Welcome to HubPages and keep up the great work!

JSMatthew~