Before You Terminate: A Starting-Point Checklist for Employers
When you're ready to terminate an employee, involve legal counsel early and often to reduce the risks flowing from that decision.
Absent serious misconduct that warrants immediate action, or a reduction in force (RIF) that requires its own extensive planning, consider the following as a starting point before making any termination decision. This is not where the analysis ends — it's only where it begins.
A note before you dig in: this is a general guide meant to get you thinking about the right considerations before a termination. Every termination is unique, with its own set of facts that should be thoroughly considered before you act.
The Checklist
Escalate the decision. Managers should escalate any instance that could lead to a termination to HR or to a supervisor with final decision-making authority over terminations.
Is the decision consistent with applicable law? If you're a covered employer under federal and/or state employment laws, make sure the termination doesn't violate them.
Does the decision give the appearance of violating these laws? For example: Is the employee on FMLA leave, or did they just return from it? Did they recently file an EEOC charge? Recently report safety violations? Complain about a manager's behavior based on a protected characteristic? Recently advise you of a disability preventing them from doing the job? If any of this applies, make sure your reasons for termination are well documented.
Is the employee covered by a written agreement that restricts your ability to terminate the relationship or alters their at-will employment status?
Do you have an employee handbook? If so, did the employee acknowledge receipt of it?
Did you clearly communicate the standards of conduct or performance expected of the employee?
Is the termination consistent with company policy — both the policy related to performance and the policy governing the termination process itself? (For example, does your handbook require a PIP before termination?)
Have you gathered all the facts and documentation that support the reason for termination?
Do any ancillary documents establish — or appear to establish — an unlawful motive for the termination?
If the termination is based on performance: Do you have proper documentation establishing expected performance, the employee's actual performance level, and how that performance compares to others in the same position? Are there any inconsistencies in the paperwork — recent raises, positive performance reviews, incomplete documentation?
If the termination is based on disciplinary issues: Did you conduct and document an investigation? Is the termination commensurate with the infraction? Were similarly situated employees terminated for similar reasons? Was the company's disciplinary process followed?
Related reading: at-will employment doesn't mean you can fire anyone, anytime, for any reason — see my LinkedIn post on that myth for more.
Did you already terminate an employee? Did they file an EEOC Charge? Read my EEOC Charge guide.