Since the 1960s, and especially since the 1990s, there has been an explosion in state and federal workplace laws aimed to protect employees from employer mistreatment, including wrongful termination. 

“Most of the laws [HR deals] with did not exist before 1990,” said James Reidy, an attorney at Sheehan Phinney Bass & Green in New Hampshire, during a session at SHRM25 in San Diego. Claims against employers are now quite commonplace, he noted. Additionally, the labor market is thin, and so are profit margins, so employers must balance retention versus dismissal. 

The risks of costly missteps with discipline and discharge are a source of great stress for HR professionals. 

The Role of Managers

When it comes to employee termination, managers must work in tandem with HR to ensure there is the proper rationale and documentation for dismissal. Managers are “responsible for training, encouraging, and motivating staff, but they’re also responsible for evaluating performance and providing critical assessments,” Reidy said. “They are the critical people who document this stuff for you.” 

It is important to have managers and supervisors document details of performance because “last-minute documentation and backfilling is never a good idea,” Reidy said. He noted that if an employee has been at the company for 15 years, now is not the time to start evaluating their performance. 

HR, however, needs to have some oversight. By reviewing employee performance evaluations, HR can check for hidden — or blatant — legal issues related to leave rights, break time obligations, accommodation issues, harassment and retaliation, union notice procedures, and more. 

Clear Policies and Procedures 

It is essential that managers, supervisors, and HR all know the organization’s rules and policies. It is likewise their responsibility to communicate standards and expectations to employees and to be consistent in their response to performance and conduct issues. What applies to one worker must also apply to another to avoid a claim of wrongful termination. 

Grounds for legitimate termination include sexual harassment and discrimination, employee theft, absenteeism and tardiness, insubordination or poor performance, and workplace violence. Employers need to have clear policies about these topics that are readily accessible to workers. 

“If you’re going to base discipline on a policy violation or poor performance, the employee should be aware of what those expectations are,” Reidy explained. 

When possible, employees should be given a chance to rectify their mistakes. “Let employees know when they are not meeting expectations,” Reidy suggested, noting that there are fixable situations that may call for measures such as a performance improvement plan.

Conducting the Termination Meeting 

Before staging a termination meeting with an employee, HR professionals need to review crucial questions to avoid a wrongful termination claim down the road:

• Does the employee have a contract? 
• Is the employee in a protected class? 
• Is the employee returning from leave? 
• Has the employee complained about workplace safety issues? 
• Has the employee complained about harassment? 
• Has the employee complained about wages? 

Checklist: Stay Organized When Conducting a Termination

Timing is another important factor in terminations. “Don’t fire an employee after a heated argument or major dispute,” Reidy said. Raw emotion increases the likelihood of mistakes and regret. The best time to conduct a termination is after a regularly scheduled performance evaluation, when cooler heads can prevail. 

Employers and HR should also ensure the method of termination is appropriate and personal. They should not delegate the task of firing to someone unfamiliar to the worker or inform the employee by letter, unless absolutely necessary. “Do it in person to the extent possible,” Reidy said. 

He offered the following advice for how HR professionals should prepare for the meeting:

• Ensure all key events supporting termination are documented. 
• Check that all policy and procedural hurdles are cleared.
• Confirm that decision-makers agree to advance the termination.
• Notify the employee.
• Always have another person present. 
• Make arrangements to prevent interruptions.
• Prepare the final paycheck. (Check the rules for the particular state regarding timing of the final paycheck.) 
• Document how the meeting went.