How to Fire Someone Without Getting Sued

Timeliness, respect and clear communication make terminations easier for everyone involved.

Posted by Dawn Lomer in Employment Law, Human Resources on September 15th, 2011

There’s a right way and a wrong way to fire someone, even when it’s a case of workplace misconduct. Do it the right way and you preserve your employee’s dignity and your company’s reputation. Do it the wrong way and you risk an expensive legal battle.

It’s never easy and it’s never pleasant, but knowing how to fire someone the right way will take some of the sting out of the process and will reduce the chance of a backlash from disgruntled ex-employees.

Hire Slow, Fire Fast

There’s an old saying in the employment world that holds true,” says attorney Eric Meyer, a partner in the labor and employment group at Dilworth Paxon LLP.  “Hire slow and fire fast.”

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Meyer recommends taking quick and decisive action when terminating someone, but advises doing it in a way that’s respectful, especially if you’re firing someone without cause. When firing for cause, respect might be lower on the priority list, but moving too slowly can have repercussions throughout the organization.

Preparation is key in making sure the termination is necessary and that the process goes smoothly.

“Let’s assume… we have an employee who is sexually harassing other employees,” says Meyer. “It’s known to the company that this is happening. That would certainly be grounds for a ‘for cause’ termination. But let’s say they delay… The victim of the sexual harassment could have a claim or multiple claims against the company under state or federal employment laws. So by not doing anything quickly and taking action reasonably designed to end the harassment, the company is creating an issue for itself and exposing itself to potential liability down the line. So not acting swiftly can have ramifications both for a company in the pocketbook, but also for other employees who may be subjected to that type of behavior,” he says.

But Don’t Move Too Quickly

Acting too swiftly, on the other hand, has its own drawbacks. Preparation is key in making sure the termination is necessary and that the process goes smoothly. If one employee accuses another of misconduct, a thorough investigation needs to be conducted before any bold moves are made.

“An employer is going to talk to employee A and talk to employee B and conduct a through investigation and if the facts confirm what employee A is saying, then there’s going to be some discipline which could be a termination… But if you act too swiftly without investigating and being sure that there is basis for a termination, you may end up losing a good employee who has done nothing wrong,” says Meyer.

Losing a good employee for no reason is one issue, but there may be other issues when firing an employee too quickly for cause.

“In unionized workplaces there may be some job security in the form of progressive discipline,” says Meyer. “The employer may not be able to terminate just because they feel like it.” Employers may need to prove that issues were brought to the employee’s attention and the employee was disciplined and given a chance to improve.

And no matter what the employment terms are, no employee can be fired for discrimination, retaliation or public policy (such as jury duty).

Firing quickly but respectfully and with sufficient preparation can keep your conscience clear and your company out of court.

Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.