Breaking Up Is Hard to Do: How to Terminate an Employee the Right Way

Let’s face it, no organization is immune from having to make the tough decision to terminate an employee. Of course no one likes to do it, but that still leaves the real question of how and when you should do it?

This is especially true for lawyers beginning a new practice or expanding their existing practice, where most of your attention is probably focused on your cases and getting the best outcomes for your clients.

The old adage is true: “timing is everything.” This is particularly relevant when it comes to terminating an employee. Certainly, there are times when an employee’s egregious conduct—such as violent behavior or sexual harassment—mandates immediate termination. But even in those circumstances, the question of “how” still applies, including thoroughly investigating the conduct violation, obtaining the employee’s explanation, and documenting the termination. But most of the time, employers can (and should) choose the right time to terminate, which should be based on whether the employee has been given fair warning of their performance deficiencies and the consequences for failing to improve.

If it’s not the right time, for whatever reason, it may be best to choose a lesser disciplinary measure and give the employee an opportunity to turn it around. Should a termination result in litigation or go to trial, questions of fairness may arise, such as:

• Did the company treat the employee fairly in the termination process?
• Was an investigation (if necessary) done in a timely fashion?
• Were all internal policies followed and applied indiscriminately?
  

Disciplinary records and any investigative files should answer all of these questions with a resounding “Yes.” So, in order to give you confidence that you have the proper procedures in place and follow them when initiating a termination, use these practical guidelines:

• Document, Document, Document: Scrupulously document disciplinary issues (if it’s not documented, it’s as if it didn’t happen).
  
• Start with Warnings: When addressing performance issues, consider using a progressive disciplinary approach: For example, an escalating series of verbal, written, and other more serious notifications to the employee so they can attempt to improve their performance. However, this would not apply to serious performance breaches, nor for new employees who clearly don’t have the skills for the job.
  
• Be Consistent: Take the same disciplinary approach for all employees—being mindful of each individual’s unique background and characteristics such as race; color; religion; pregnancy; gender identity; sexual orientation; national origin; age, 40 or older; disability, visible or invisible; or genetic information.
  
• Document Some More: Always document the termination with a concise termination memo. If you do not provide the reason(s) for termination, the employee might assume the actual reason for their discharge was due to whatever protected category applies to them, such as race, gender, or age.
  
• Don’t Waver: In the termination meeting, be professional but firm in your decision. The termination memo should do much of the talking for you.
  
• Stick to the Script: Do NOT say anything different to the employee than what’s included in the termination memo—this is not the time to be overly reassuring and retreat from the true reasons for discharging the employee.
  
• Go in as a Team: Try to have a manager who knows the employee present for the termination. A team approach—two management representatives, or a management representative and a human resources representative, or a management representative and a career counselor, etc.—is preferable because one person can take notes and there will be more than one witness to confirm what is said.

Terminating an employee is an understandably difficult task for any manager. But you owe it to your organization and other employees to meet that challenge. Your company’s productivity, and potentially morale, will eventually be negatively impacted if you don’t take action. But doing so with respect, the right way and at the right time, will prevent long-term damage and possible legal claims.

You can find additional resources about law firm practice management and employee-related issues on the WSBA’s Practice Management Assistance page.