How to Deal With Employee Termination

This article outlines the essential steps to take when terminating an employee. It’s crucial to remember that employment laws vary by state, so consulting with an attorney before making any policy or personnel decisions is highly recommended.

What do I do if I want to let someone go?

Assuming, of course, that you want to terminate someone for a legally acceptable reason, you should have taken them through some progressive discipline to try to correct their behavior before it gets to the point of termination.

Why progressive discipline? It’s my practice; I should be able to do what I want.

For the most part, that is correct, but it ultimately comes down to the level of risk you are willing to take on with your business. In some instances, there may be more risk in leaving a person in place than letting them go. Only you, and possibly your attorney, can make that decision.

From a human resources standpoint, it is best to have a consistent procedure that attempts to improve an employee’s performance before it reaches the point of termination. Unfortunately, what usually happens is that minor performance issues are overlooked until a breaking point is reached — followed by a reactive “paper trail” built to justify firing someone. In the end, nobody wins; the employee is not given specific direction on how to improve, and your frustration levels rise until it is awful to come to work.

There are also significant costs associated with terminating people, which are generally estimated at 150 to 250% of their wages. So why not at least try to rehabilitate a current employee?

One thing to consider is whether your progressive discipline procedures will be written in the form of a policy or not. All progressive discipline should be consistent — this is important from a legal defensibility standpoint and from a morale standpoint. If you apply rules inconsistently, you run the risk of a court determining that your underlying reason for termination was based upon protected characteristics of an individual and not the issue at hand. You also create an environment in your office where your employees do not feel safe, and as a result, your turnover rate will increase.

That being said, it can be dangerous to put a formal progressive discipline policy in writing, as it runs the risk of violating the “at will” employment doctrine. By placing something in writing, you put yourself in a position where you must follow every step, fearing that skipping any could be interpreted as wrongful termination by a judge. It is better to have a system laid out, but to keep that internal, allowing yourself the flexibility to act in the best interest of the practice.