Preliminary Considerations
Before recommending termination, managers should determine whether lesser corrective measures are appropriate. Depending on your workforce, it may make sense to implement a progressive discipline policy. A progressive discipline policy may include these steps:
- Verbal Warning. Manager will meet with the employee to discuss the issue, clarify expectations and document the conversation.
- Written Warning. If the issue persists or is more serious, the employee will receive a written warning describing the problem, expectations going forward and the consequences of further violations.
- Final Written Warning or Suspension. Continued failure to improve or repeated violations may result in a final warning, which may include suspension without pay.
- Termination of Employment. If the employee fails to correct the problem or engages in serious misconduct, employment may be terminated.
Even if your company does not have a formal progressive discipline policy, managers should consider whether the following lesser corrective measures are appropriate prior to termination:
- Coaching or counseling to clarify expectations.
- Performance Improvement Plan (PIP) with measurable, time-bound goals.
- Additional training or reassignment, if feasible.
For any discipline, it is important to document it in writing. A “verbal” coaching or counseling should be documented in some way, even if it is a simple email to the employee (or a note to yourself) that references the discussion.
Review of Facts and Documentation
When conducting performance reviews, warnings and notes to file, make sure they accurately reflect an employee’s performance. Managers understandably may not want to be hurtful or overly critical in performance reviews, but if an employee’s performance review does not accurately address performance concerns, this can create risk if you later need to terminate based on poor performance.
If there is a write-up based on a policy or rule violation, be clear about which policy or rule was violated. Make sure that the manager clearly communicated what the violation was and that the rules and policies are enforced consistently among employees. It is crucial to ensure that similar infractions by other employees have resulted in comparable outcomes. Under the law, there can be a presumption of discrimination if a similarly situated employee who is not a member of a protected class is treated more favorably than an employee who is part of a protected class. For example, you want to avoid situations where you may be writing up certain employees for tardiness or absences, but not others, particularly if an inference could be made that it is tied to a protected class.
Always retain all relevant documentation – emails, witness statements, reports and disciplinary records.
Consultation and Review
Before making a termination decision, Human Resources or an employment lawyer should review the situation for fairness, adequacy of documentation, and compliance with Company policies.
Legal review is recommended in the following circumstances:
- Employee is in a protected class.
Under federal and most state employment laws, employers may not discriminate against employees or applicants based on:
- Race
- Color
- Religion
- Sex (includes pregnancy, sexual orientation and gender identity)
- National origin
- Age (40 or older)
- Disability
- Citizenship or immigration status (for employers covered by the Immigration Reform and Control Act)
- Military or veteran status (under USERRA)
- The employee having taken a leave of absence under the FMLA
Many state and municipal laws expand protection beyond the federal categories. Depending on the jurisdiction, these may include:
- Marital status
- Familial or parental status
- Domestic violence victim status
- Sexual orientation (if not already encompassed by “sex” under state law)
- Gender expression or gender identity
- Political affiliation or beliefs
- Arrest or conviction record / criminal history
- Credit history or credit information
- Tobacco use / lawful off-duty conduct
- Height and weight
- Genetic characteristics or sickle cell trait
- Homelessness or housing status
- Source of income
- Military discharge status
Before making a termination decision, you should assess whether any of these protected classes may be of concern.
- Employee has recently engaged in protected activity, such as filing a discrimination or harassment complaint, reporting misconduct or taking protected leave (e.g., FMLA, workers’ compensation).
If an Employee has recently engaged in a protected activity, the Employee could make a claim for retaliation if terminated shortly thereafter. The temporal proximity element is a factor that could support a retaliation claim. Be sure to consult with legal counsel, even if the employee has simply complained to a manager recently.
- Termination may implicate employment contracts, collective bargaining agreements or whistleblower protections.
Whenever there are agreements involved in a person’s employment, be sure to consult with legal counsel prior to terminating. There could be severance triggers or required notice periods.
- The decision involves reduction in force, mass layoffs or the closure of a facility.
There are additional legal risks and potential disclosure requirements associated with reductions in force, mass layoffs or facility closures. Even for companies that are not large enough to trigger WARN Act requirements, it always makes sense to consult with legal counsel for reductions in force to avoid or mitigate any risks.
Preparing for the Termination Meeting
- Plan Ahead: Confirm who will attend, typically the manager and an HR representative.
- Prepare Documents: Final paycheck, COBRA notice, benefit information, confidentiality or non-compete reminders and a written termination notice (if required under state law).
- Script the Conversation: Keep the message short, factual and consistent with documentation. You do not need to give a lengthy explanation for the termination.
- Confidentiality: Limit disclosure of reasons for termination to those with a legitimate business need to know.
Conducting the Termination Meeting
When conducting the termination meeting, you want to clearly communicate that the employment relationship is ending and provide the effective date in a respectful and professional manner. It should be held privately. Try to avoid any arguments or detailed justifications during the meeting.
Often, the most difficult part once employees are terminated is arranging the return of company property. Try to arrange for the return of company property and the removal of access credentials in that meeting in a discreet and professional manner.
Depending on the situation, you may want to ask the employee to collect any personal belongings and leave the premises immediately after the meeting.
After the Termination
- Final Pay: Issue the final paycheck in accordance with state law (some states, like California, require same-day payment).
- Benefits and Notices: Provide COBRA continuation information (if applicable), unemployment insurance notices and any state-specific separation documentation.
- Record Retention: Keep all records related to the termination decision (disciplinary actions, communications and meeting notes) for at least the legally required retention period—typically one year under EEOC rules, or longer if litigation is anticipated.
- Internal Communications: Notify team members only on a need-to-know basis to preserve confidentiality and professionalism.
Preventive Best Practices
To put your company in the best position and reduce any employment-related legal risks, we recommend the following:
- Manager Training: Provide regular training on equal employment opportunity (EEO) and anti-harassment policies, documentation and anti-retaliation laws.
- Regular Performance Reviews: Ensure feedback is ongoing, accurate and documented.
- Consistent Enforcement: Apply disciplinary standards and Company policies uniformly.
- Early HR Involvement: Engage HR as soon as performance or conduct issues arise.
- Legal Updates: Stay informed of federal, state and local employment law changes (e.g., state mini-WARN laws, pay transparency or leave laws).
Contact
For guidance, contact KJK Labor & Employment attorneys Beth Spain (BRS@kjk.com) and Emily Vaisa (EOV@kjk.com).