How to fire an employee (the legal way)

Companies often reduce their workforce to prepare for a possible economic downturn, or because they are restructuring their business. Although employment in New Jersey and New York is at will – meaning employers can fire an employee for any reason, employers must be careful not to violate any nondiscrimination or whistleblower laws. 

Here are four reasons you can legally fire an employee: 

  1. Poor work performance. Not being able to perform job duties is a valid and legal reason to fire an employee. However, before doing so, be sure their performance has been documented over time and that you have provided them with an opportunity to improve their performance. Give the employee a written performance review with attainable, measurable goals, and hold regular meetings to assess whether your employee is improving. If not, fire away! 
  1. Unethical behavior. Infractions such as committing fraud, stealing, falsifying company records, lying about work tasks, or engaging in discriminatory or harassing conduct warrant immediate employment termination without notice. Be sure to document the misconduct. 
  1. Violations of company policies. For this to work, you first must have company policies specifying that failure to comply will lead to discipline, including employment termination. Such policies may include: 
  • Confidentiality 
  • Social media 
  • Nondiscrimination 
  • Anti-harassment 
  • Conflict of interest. 

Based on the severity and frequency of the conduct, you must decide whether a warning or immediate employment termination is warranted. As always, document the misconduct. 

For example, you can justify firing an employee if they violate your social media policy by posting something that could harm your company’s reputation or image. 

  1. Business is slow. You may decide to fire an employee or several employees based on the needs of your business.  
  • First, know your numbers. Do not lay off a larger number of minorities, women, LGBTQ, older, or disabled workers, or whistleblowers, as you may get sued. 
  • Second, offer severance. Your reason for letting an employee go may be linked to cost-cutting measures but offering a severance package will save you money in the long run. 

Before taking any steps to fire an employee, consult with your employment attorney to ensure that you have paid close attention to every detail. It is never an easy decision to fire an employee. But, if you document the employee’s performance or conduct that led to the firing, do not single out members of protected classes, and offer severance when warranted, you can avoid wrongful termination lawsuits and protect your business. 

If you have employees you need to let go and you want to do it strategically and legally, give us a call at 973.787.8442

If you need help implementing the right policies and procedures for your business, schedule an Employment Law Assessment today, so we can help you protect your business.

Please keep in mind that this is general information, not legal advice. 

And the law may change at any time. 

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