Employee Terminations: Best Practices for Employers

Some of you might like a short primer on employee terminations, something we all prefer not to do, but sometimes it is unavoidable. This is one part of my topic: Hiring, Firing, Disciplining and Laying-off Employees for an Employment Law Update Seminar. Terminating someone, whether or not “for cause,” may be one of the harder things that you have to do; following some best practices may make it just a little easier.  Remember it may be one of the hardest things that an employee faces, so it is worth giving it some thought and treating most people as you would want to be in the same situation.


[  ]    Does terminating the employee deprive them of earned or soon to be earned benefits and/or compensation?
[  ]    Does the termination breach any contracts, written, implied, or otherwise, or public policies?
[  ]    Could the termination be considered retaliation for refusing to aid in illegal activity and/or in response to a whistle blowing action?
[  ]    Is it the result of discrimination or does it violate the Cat’s Paw Doctrine?
[  ]    Does the termination violate the NLRA? (The right to join, gather, organize, etc… for mutual aid and/or protection)
[  ]    Does the termination follow the practices/policies of previous terminations?
[  ]    Is it the result of a policy that affects someone in a protected category more than others?


  1. Conduct the termination in a private and respectful way, have a witness, avoid a debate. Get legal advice.
  2. Avoid Bias: Bias often shows up due to stereotypes and skewed perceptions, even without realizing it! Be sure you handle decisions about similar situations consistently.
  3. Consider Disability: When terminating persons with a disability, be sure they have been reasonably accommodated so they may perform their job. The ADAAA has greatly expanded definitions under the law for disabilities.
  4. Look at Retaliation: Just because an employee has engaged in behavior that you do not like – complaining of discrimination or illegal conduct does not mean you can fire them. Sometimes Retaliation claims win when others do not.
  5. Whistle Blowing: Whistle blowers are protected if they report violations to a regulatory agency, and internally, as long as they have reasonable beliefs regarding violations. It is important to investigate and resolve compliance concerns.
  6. Honesty is the best policy: Misstating the reasons an employee was terminated may result in a court finding discriminatory motives even if you want to spare an employee’s reasons. Do not hold back the facts to spare the employee’s feelings.
  7. Fairness while firing Employees-at-will, in theory, may be done at any time, a semblance of “due process” may be advisable” and for layoffs**, reasonable notice and – under some circumstances – a fair severance package with all the necessary release language can save some grief.  Long-term employees with good records may sue for wrongful termination.
  8. Document: Have an up to date personnel records showing employee performance, as well as records of warnings to back up a termination. Remember: All negative entries in a personnel record need to be brought to the attention of the employee! Provide a copy of anything negative to the employee within 10 days of putting it in the personnel file. A Best Practice: Have the employee sign an acknowledgment.
  9. Keep Discipline simple and flexible. Elaborate policies that change on a case-by-case basis can easily give rise to claims, but do not make them so rigid that someone with unique and very serious circumstances will have to be subject to disciplinary action.
  10. Do not make an Example. Private and discreet terminations are the way to go. Publicly terminating someone can create liability, and may hurt morale more than it helps enforce a rule.
  11. The Devil is in the Details. There are many regulations surrounding terminations. Make sure everything is done appropriately. Do not forget to issue all earned compensation (on the day of a firing and within the regular payday or sooner for other terminations, offer COBRA, and give out the MA unemployment insurance brochure.

**Under the WARN Act, companies of a certain size are required to give notice and MA companies under the Mini-Warn act must meet certain requirements.


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