How to fire an employee
and not get sued

Have you, as an employer, ever found yourself in one of these situations?

  • An employee is not meeting your company’s work standards.
  • Business is slow, and you don’t need as many employees as you previously did.
  • An employee has violated one or more of your workplace policies.

These are all legitimate reasons to fire an employee, provided you take the right steps before, during, and after.

How to fire an underperforming or problem employee

1. Document the employee’s poor performance or misconduct.

If you are firing an employee for cause, you must have records to support your decision. These include any policies they violated, all verbal and written warnings and reprimands, performance reviews and improvement plans, and training.

2. Tell the employee why you’re letting them go,
and structure the conversation.

State your reasons quickly and succinctly. This is not the time for a debate. Include the date on which the employment termination will be effective – we usually recommend it be the same day – any benefits that will continue and for how long, any severance offered, and what will happen next. Control the conversation and keep it factual, as your words may be used against you at a later date.

3. Avoid discrimination. 

If the employee is a member of a minority group, a woman, LGBTQ, age 40 or older, has a disability or is a whistleblower, offer them severance in exchange for a release of any and all claims against the company.

How to lay off employees during a downsizing 

Restructuring your business for financial reasons is never easy, especially when employees have proven their loyalty to the company and have done nothing wrong.  Here are two tips to help you conduct a reduction in force:

1. Know your numbers.

Do not lay off a disproportionate number of minorities, women, LGBTQ, older workers, disabled workers, or whistleblowers.  That will put you at the wrong end of an employment discrimination lawsuit.

2. If you can, offer severance.

Use a formula based on position and years of service that provides equivalent severance to everyone based on those parameters.  When you must let your employees go, no matter the reason, do it legally and strategically.  If you need help creating or updating your employment policies or navigating the employment termination process or a downsizing, schedule a Strategy Session with us today. We’ll help protect you from wrongful termination lawsuits.  If you’re faced with such a lawsuit, you’ll need an experienced employment law attorney by your side, so you can minimize the risk to your company and get back to business. Give us a call at 973.787.8442 today.

This blog is for informational purposes only. It is not offered as legal advice, nor is it intended to create an attorney-client relationship with any reader. Consult with competent local employment counsel to determine how the matters addressed here may affect you.

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