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How to Fire an Employee Legally

Updated on September 11, 2012
ChrisMcDade8 profile image

Christine McDade is a Human Resources professional (PHR & SHRM-CP) with over 18 years in the public sector.

Firing employees should be handled with care to ensure the legal rights of the employee and employer are respected at all times. Employees who feel they are unjustly discharged from their positions will seek action by way of filing a charge with the local EEOC (Equal Employment Opportunity Commission) office or with an attorney who is more than willing to make a case for that person. An article or two in the paper and a story on the six o'clock news are all that is needed to give your employer a bad rap. It can be a lose-lose situation on the employer side of things because sympathy will certainly be on the poor, undeserving employee who was mistreated by the big, bad employer. It can be an ugly situation in terms of public relations for the organization's reputation.

Legal Review

When an employer feels a termination might lead to a legal action, it is always prudent to have a lawyer review the situation to assist with meandering through the potential legal minefields. Ask any attorney about a termination and they are likely to advise that is better to ask questions of the attorney before the final decision to fire the employee is made. The "ask me now or ask me later" is a phrase that applies in such a scenario because a bad firing will lead to legal action by the jilted employee who will seek his/her own legal counsel. When this action occurs, the employer will have to get an attorney to represent the company during mediation, EEOC charge of discrimination, trial, etc. Therefore, a common sense or prudent approach to this type of a termination would be to call the attorney before the termination is made.

Progressive Discipline

Most management and human resources text books will present the concept of a progressive disciplinary approach that may ultimately lead to a termination. Progressive discipline is simply a way to deal with job-related behaviors through the use of increasingly severe workplace measures to encourage and/or assist the employee to improve the behavior that is not meeting the expectations of the job. Many believe this manner of discipline is not necessarily to punish but to give the employees the opportunity to improve the performance issue. Many organizations have a progressive discipline format in their disciplinary procedure to ensure employees are given a "fair shot" to improve the performance and possibly avoid the termination.

Document all corrective actions taken.
Document all corrective actions taken. | Source

Steps to Progressive Discipline

Examples of commonly recognized progressive employee discipline are as follows:

  1. Verbal Warning: Sometimes referred to as an "oral warning", this first step of progressive discipline is generally a warning given to the employee as a spoken counseling about a matter. It is called verbal because it is not a written document that requires a signature from the recipient. Rather, it is a conversation between supervisor and employee regarding an area of performance which is not meeting the expectation of the job. It can be misconduct or simply not performing at the level required of the position. Verbal warnings should be given in private, not in front of coworker where the employee is humiliated about the issue. The result will most likely be more successful if the employee is not embarrassed in the process of being talked to about the issue. For many employees, they do not have to be told more than the one time about the issue. The matter dies and does not need to go to the next level of discipline. Supervisors will want to document the meeting in their notes or day planner to establish a record of when the conversation occurred.
  2. Written Warning: At this stage of the disciplinary procedure, the employee should have already received a verbal warning about the issue under scrutiny. Depending on the infraction or performance issue, supervisors may choose to give another verbal warning before deciding to step up the discipline to a written document. Many supervisors hesitate because they know that the written warning becomes part of the employee;s personnel file. At the written warning stage, supervisors might be wanting to get the attention of the employee who is not responding to the supervisor's discussions about the performance issue. It is important to have the employee sign the document and have another supervisor witness the discussion and sign the document as well. It is also useful to mention in the write up that the employee had been verbally counseled in the past. (At this point, the notes or day planner mentioned in step 1 can provide the actual date of the verbal counseling.)
  3. Second Written Warning: A second written warning is often given to offer another opportunity for correction of a behavior or performance issue that an employee is having. Since the idea behind progressive discipline is to be fair in the disciplinary process and provide both opportunity and direction for improvement, a second written warning demonstrates support for the employee by the employer. Since the organization has invested in this employee to perform a specific job, it is understandable for the employer to want to give every opportunity to the employee to improve. The number of written warnings given to an employee must be determined by the supervisor by considering the nature of the wrongdoing and the severity of the situation. Because employers are dealing with human beings, each situation is going to be unique. There must be consideration for consistency of the administration of the disciplinary procedures. Having a policy which outlines the procedures will assist with the administration of a consistent approach to discipline.
  4. Suspension Without Pay: As mentioned in step 3, a second written warning can be given to the employee who does not show improvement in the areas needing correction. However, supervisors will often take the discipline up to a more severe level by issuing a suspension. The amount of time off can be determined by the supervisor. In these tough economic times, I usually do not recommend an extensive suspension period with no pay. After all, who are you hurting? Taking pay away from a family during these difficult economic time is a hard thing to do for employers, and I prefer a shorter period of time for a suspension. However, if giving a stern suspension will keep the person employed based on this last chance, a longer suspension may be appropriate for the situation.
  5. Termination: The discharge of an employee is the last step in the progressive disciplinary approach. All measures of the progressive approach should be taken prior to arriving at this step. Employees who reach this point in the employment relationship should honestly be able to acknowledge that opportunity has been communicated to them for improving the behavior that has been addressed both verbally and in writing.

Signatures on written warnings given to employees are an absolute must. All records should then be placed in the employee's personnel file. If the progressive method of disciplining is being administered, a supervisor will have the necessary documentation to establish the fairness of the employer's approach to seeing that this employee be successful in the position. A progressive approach to discipline is never meant to set up an employee to fail. Rather, this method is used to offer some consistency and fairness to allowing an employee the opportunity to be successful in the position. Some organizations will have a strict approach which allows less flexibility in the number of warnings that are administered. Other organizations will follow a progressive approach but are more flexible in reviewing each situation for determining how many written warnings should be given to an employee. For these organizations, there should be language in the progressive discipline policy which allows for this flexibility of skipping steps should the nature of infraction deserve to do so. Having such a practice in place is reasonable when you have an example of misconduct, such as theft, that may good straight to termination without warnings being given. Other misconduct, such as coming to work late, may be given more chances for correction.

Some Final Tidbits About Legal Terminations

Employers who have documented a progressive approach to discipline will have sound documentation to support a decision to fire an employee. Terminations should be for nondiscriminatory reasons and only after the employee has been given a reasonable opportunity to make corrections to behaviors that are unacceptable. For those egregious situations that require an immediate termination without going through all of the progressive discipline steps, consult your employer's attorney for sound legal advice. Having a good policy regarding terminations in place will guide the employer through these difficult employment situations.

Do your legal research and consult an attorney for those difficult terminations.
Do your legal research and consult an attorney for those difficult terminations. | Source


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    • ChrisMcDade8 profile imageAUTHOR

      Christine McDade 

      6 years ago from Southwest Florida

      Yes, I agree. Supervisors must address employees who have performance issues in the workplace. Documenting performance through evaluations, disciplinary write-ups, etc., is very important in this regard. Thanks for your comments.

    • Paradise7 profile image


      6 years ago from Upstate New York

      Yes--documentation is an absolute must! It's wise to issue an employee handbook to begin with, one that outlines what is acceptable/unacceptable in this particular workplace, for things like dress, tardiness, sick days, sexual innuendo, work performance and work performance reviews, using telephones and internet at work, smoking; things like that. That way, they can't say they don't know, and we can prove it!

      Most employees are diligent and reliable, and resent it when an underperforming employee "gets away with murder", simply because the employer is afraid, for some reason, to take direct action and fire the person.

    • Glimmer Twin Fan profile image

      Claudia Mitchell 

      6 years ago

      Really useful and informative hub. When I worked in management I was always told to document, document document. Well written too.


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