Apr 04, 2023

How to Fire Employees Legally and Compassionately

Firing employees is always difficult, but it is easier when the company has a plan and a process in place. There are ways to alleviate the pain for everyone. Read on for some tips on how to do this efficiently — and humanely.

Firing employees is always hard. Perhaps that is why Google fired 12,000 employees via email one night, immediately locking them out of company devices. Most employers do not fire employees that way.

Most of the time, employers make the difficult decision to let someone go on an individual basis. For most, it is a wrenching experience that, first, requires preparation and, second, must be done in a way that protects both the organization and the person doing the termination interview. To achieve these two objectives, companies need guidelines that must be followed before letting an employee go. These guidelines should include the following:

Legality

Keep in mind that even though most states follow some version of "at-will" employment laws, which does not mean someone can be fired at any time for any — or no — reason,  it is not absolute. There are many exceptions to at-will laws, such as retaliatory or discriminatory action and breach of contract.

The reason for termination must be, one, legally acceptable under federal, state and local laws, and two, true and verifiable. Under federal law, it is illegal to fire anyone based on any status protected by equal employment opportunity laws, such as age, religion, disability, sexual orientation and gender (including gender identity and gender expression).

Reasons such as poor performance or unexplained absences generally are acceptable. It is also acceptable to fire someone if they have committed illegal or criminal activities.

Company Policies

Every company handbook should contain the company’s firing policies. This means detailing the reasons disciplinary measures will be taken, outlining the steps in the process and stating what actions will result in termination.

The handbook should also provide guidelines for probationary periods. In general, most states permit employers to fire probationary employees during the probationary period.

Employers need a plan that reinforces the company's hiring policies. Guidelines for this process include:

• Investigating the event. Sometimes the event resulting in a termination needs no further investigation; for example, if constant lateness can be substantiated by timeclock records. However, if the event is more complicated, such as allegations of discrimination, sexual harassment, retaliation or threats of violence, the employer must gather supporting evidence, such as interviews with others who witnessed the event. It is important to be prepared in the event the employee files a lawsuit against the company after they are terminated. Note that an employee who discriminates against, sexually harasses, or threatens violence against another employee may be fired immediately.
• Documenting violations. Employers should document infractions in writing, sign it and have the employee acknowledge they have seen the documentation. The signed document should be stored in the employee’s personnel file.
• Creating a performance improvement plan. Create a performance improvement plan that gives the employee the opportunity to rectify their errors. Discuss this plan with the employee and have them sign off on it.
• Recordkeeping. Store any documentation relating to the person in their personnel file so the company can support any claims arising from a lawsuit or denial of a claim for unemployment benefits. (Note that depending on state law, unemployment insurance may be denied for reasons of misconduct.)

Firing interview

Firing an employee is stressful. It is a best practice to have another person present during the meeting, preferably someone from HR. In addition, be sure to do the following:

• Keep the meeting short and factual.
• Give the terminated employee all relevant information about, one, their benefits, including COBRA, severance package, etc., and two, leaving the building, returning company-owned items, etc.
• Be respectful of what the employee has to say.

Layoffs

Layoffs are different from individually firing an employee, but they too need to be planned. Even when layoffs are necessary, no company wants the process to be perceived as negatively as Google’s was.

It is important to get professional advice to be sure you are complying with federal, state and local laws.

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