How to Fire Someone: Basic Termination Procedures

Disciplining employees is always a fraught, often emotional process. When making the decision to do so, we find it helps to have a checklist to determine whether some type of discipline may be appropriate or whether it is time to terminate the employee. If you choose to terminate an employee, you should follow certain guidelines, outlined below, to reduce the risk of employee hostility and potential legal claims. So, how do you fire someone? Keep reading for a step-by-step guide that keeps you clear.

1) Gather the Facts

Gather the facts. If applicable, gather the following information:

  1. Discuss the situation with the employee’s supervisor and, if applicable and appropriate, the employee’s coworkers or
    1. Try not to rely solely on a supervisor for termination decisions. Employers are often liable for supervisor harassment or
  2. Allow the employee to offer their version of the facts and any explanation, note any mitigating
  3. Examine the employee’s past work and discipline

2) Determine the Effectiveness of Termination

Determine the effectiveness of termination by:

  1. Evaluating whether the termination is appropriate under the circumstances;
  2. Determining whether the termination is consistent with prior termination decisions (to avoid allegations of discrimination);
  3. Making certain that the termination does not overlook work rules or policies; and
  4. Allowing the employee to maintain their self-respect.

3) Talk to Them

Discuss any behavior or performance issues with the employee prior to the termination to try to avoid the employee being surprised by the decision or arguing with it.

Note: Giving the employee warnings before termination may also help you challenge an unemployment claim made by the employee.

4) Keep Records

Document the above facts. Documentation is incredibly important if any legal issues arise down the line.

5) Review All Relevant Documents and Information

Review all relevant documents and information, including:

  • Employment Agreements (offer letters, other agreements);
  • Other Employee Documents (Employee Handbook, memos to employee);
  • Work Rules and Employment Policies;
  • The Employee’s Performance Reviews and Personnel File: specifically including discipline, incident reports, warnings, etc. (See our article on maintaining employee files for advice on getting ready for this.)

If you don’t have these documents, G & G Law can help! We offer a suite of employment solutions that make this process smoother.

6) Consider Your Post-Termination Options

Consider whether to give severance and ask for a Waiver of Claims.

Severance

This option is especially salient if the employee has been with the company for a while, or has provided many positive contributions to the company.

Waiver of Claims

We generally recommend a waiver when an employee receives severance.

If the employee hints at legal action, or if the termination review reveals issues, you should discuss it with an attorney. The most common claims are:

  • Wrongful termination: Usually when an employee feels as though they were fired or forced out for reasons such as discrimination, avoiding an increase in unemployment insurance, etc.
  • Discrimination:
    • Always includes pregnancy, race, religion, color, gender, age, disability, national origin
    • Can also include sexual orientation, gender identity, ancestry, marital/parental status, military discharge status, source of income, medical conditions, political affiliation, use of a lawful product (e.g. alcohol, cigarettes), or others
  • Retaliation: Being fired for filing certain claims against the employer, helping in investigations, whistleblowing, reporting harassment or discrimination to the employer, and occasionally other conduct.

7) Know Their Rights

Analyze legal rights that may be involved.

Potential Red Flags

  • Minority Status
    • In the US, this always includes pregnancy, race, religion, color, gender, age, disability, national origin (Title VII; Americans with Disabilities Act; Age Discrimination in Employment Act).
    • Depending on the state/city of the employee, this can also include sexual orientation, gender identity, ancestry, marital status, parental status, military discharge status, source of income, medical conditions, political affiliation, use of a lawful product (e.g. alcohol, cigarettes), or others (E.g. Chicago Municipal Code § 2-160-030).
  • Employee performance reviews do not match the stated reason for firing;
  • Possible Retaliatory Discharge Suit:
    • Did the employee recently file a governmental complaint or other lawsuit?
    • Did the employee participate in a governmental investigation or act as witness in a lawsuit involving the company?
    • Did the employee recently report sexual harassment, discrimination, or company violation of the law to someone within the company?
  • Whether the employee recently took or requested any sort of leave; and
  • Any previously made promises to the employee regarding conduct, discipline,

If any of these red flags appear, you should speak with an attorney before terminating the employee to reduce the likelihood of legal claims.

8) Choose How to Fire Them (Your Method of Termination)

Whether you choose to terminate by email/letter, over the phone, or in-person, be very respectful – the discharge notification can set the tone for the end of the employment relationship.

Make sure you consider the return of company property and/or revoking employee access to company offices, files, and databases when determining how to handle the termination notification.

Email/Letter

  • Not recommended for in-office employees
  • Leaves evidence that the termination was carried out properly
  • May avoid in-the-moment proclamations by employer and employee
  • May be less awkward for both parties
  • Makes sure all of the necessary information is included about COBRA, unemployment benefits,
  • Provides attorneys, HR, and supervisors a chance to review the letter/email before sending

Over the Phone

  • Not recommended for in-office employees
  • More personal and traditional than a letter or email
  • Employee has the opportunity to ask questions
  • Can use a script or outline of the call to structure it
  • Can use the employee’s reactions to get a feel for the employee’s tone (whether they might try to file a lawsuit, whether they are surprised)

In Person

  • Typically better for employees that work in the office, because you can gather company property and/or revoke employee access to company databases/offices during the meeting;
  • More personal and traditional than a letter or email;
  • Employee has the opportunity to ask questions;
  • Can use a script or outline of the meeting to structure it;
  • Can use employee’s reactions to get a feel for the employee’s tone (whether they might try to file a lawsuit, whether they understand the decision, whether they are surprised by the decision).

Terminology

It’s best to use term “terminating employment (relationship)” or similar, not “fired” (harsher tone) or “laid off” (which has its own legal meaning).

Do NOT use false reasons to soften the discharge. If absolutely necessary, you can refuse to give any reason, although this can upset the employee.

End the discussion or letter on a “positive” note. Advise the employee to seek a new position, offer severance or positive recommendations when appropriate, thank the employee for their contributions to the company, etc.

If the employee says anything that hints at legal action (I was treated unfairly, my supervisor is lying, etc.), make sure to contact an attorney to help analyze the specific situation and investigate the allegations.

9) Collect Company Property

Collect any company property (including building and office keys) from the employee. Employers cannot make paychecks conditional on the return of company property, so it is easiest to attempt to retrieve such property during a termination meeting, prior to termination, or whenever you think the employee is most likely to return it.

10) Revoke Employee Access

Revoke employee access to any company databases, shared documents, and other resources. It is important to do this as soon as possible, to prevent the employee from saving their own copies, deleting or altering copies, or otherwise negatively impacting the employer.

  • Safety: It’s important to keep building access secure in the event a disgruntled employee returns to the business unannounced or after hours. If a former employee returns to the office without permission, he/she is trespassing on the property and the employer has the right to call the police.

11) Provide Required Information

Give the employee any legally required information.

  • Inform the Employee of their COBRA
    • In Illinois, regardless of employer size, the employer must ensure that the employee receives notice of their continuation rights under COBRA within 10 days of termination, either from the employer or the insurance
    • Consolidated Omnibus Budget Reconciliation Act (COBRA): Requires employer-sponsored group health plans to offer continuation coverage to eligible employees and their dependents when coverage would otherwise be lost due to certain events (for example, a termination of employment).
  • Inform the Employee of their right to
  • Pay final wages.
    • Includes unused, accrued vacation. Does NOT include sick days, unless sick days are combined with vacation days in the policy (for example, providing 15 total days off, which may be used as sick or vacation days).
    • Must pay employee in full upon termination or no later than the next regular payday.
    • ALWAYS contact a lawyer before withholding any amount from an employee’s paycheck, as such withholdings are typically illegal.

Note Regarding Layoffs

Illinois Worker Adjustment and Retraining Notification Act

  • Applies to employers with 75 or more full-time workers or those employers that employ 75 or more employees who, in the aggregate, work at least 4,000 hours per week (exclusive of hours of overtime).
  • An employer may not implement a mass layoff, relocation, or employment loss unless 60 days before the action takes effect the employer gives written notice to the affected employees and representatives of affected employees; the Department of Commerce and Economic Opportunity; the chief elected official of each municipal and county government within which the employment loss, relocation, or mass layoff occurs; and the Illinois Department of Labor.

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