Essential Steps to Preventing an Unlawful Termination

Firing an employee who has devoted his or her time and effort working for your company is never easy. Unfortunately, any HR manager has to live with the unpleasant reality of laying off some employees, and even straight-up firing them on occasion. However, a poorly handled termination can open your company to an unlawful termination lawsuit — messy, expensive, and often harmful to your reputation. So here are some tips to help your terminations go as smoothly as possible.

Lay the groundwork

The main reason for firing an employee is their inability to dispense off their duties accordingly. Before termination, the employees should be well informed about expected tasks and duties, and how they should be performed. If there are changes in policy, employees must be promptly made aware of it. Putting everything in black and white makes it easy for you to point out how expectations have not been met later.

Use progressive discipline

Firing an employee means cutting your losses as an employer. It is a loss of resources spend training the employee, as well as an anticipation of further resources lost in finding their replacement. Implementing a progressive discipline policy can help prevent unnecessary terminations. No federal law compels employers to follow a progressive discipline policy, so this can make firing look a lot friendlier, considering that most employee lawsuits are inspired by the perception that the firing process was not fair.

Choose your firing words carefully

When progressive discipline fails, and the only option remaining is to fire the employee, you need to act professionally and follow basic legal rules to allow the employee leave in a dignified manner. If the HR manager is the designated bearer of the bad news, you should consider having a HR rep on board to answer any questions raised by the employee. Remain focused and concisely provide reasons for termination. It may also be wise to have a witness present just in case the employee decides to challenge the decision later.

Beware of constructive discharge

Constructive discharge comes about when an employee claims that the working condition were intolerable. In a way, this could be interpreted as some form of forced exit. Such factors include demotions, actions intend to harass the employee, unexplained drop in performance ratings, termination threats, discrimination, and any actions intended to make the employee quit. As such, HR managers should ensure that the organization abides by all federal employment laws. This serves to take care of factors that might trigger constructive discharge claims.



Firing an employee is never easy. As a HR manager, it is imperative to prepare well and make the process objective and fair as possible. Above all, show empathy and respect when delivering the news. They may not be a good fit for your company, but they are still human.

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