Firing

There’s danger in every aspect of firing, from WARN Act layoffs and exit interviews to constructive discharge and more.

Learn how to fire an employee and sidestep wrongful termination lawsuits, with battle-tested firing procedures, and employment termination letters. At last, you can fire at will!

Hiring managers spend too much time interviewing candidates—and asking them the wrong questions. Then they’re often surprised to have to fire those same candidates a few months later after discovering that good interview skills don’t necessarily signal a great job fit. The problem: Employers often hire for hard skills but fire for soft skills, says Karl Ahlrichs of Hiring Smart, an Indiana firm specializing in employee selection. Instead, says Ahlrichs, “Our new slogan should be, ‘Fire them before we hire them.’” ...

You know you have an obligation to eliminate discrimination, harassment and retaliation. You know you have to make sure employees don’t harass co-workers or subordinates, or harm customers and others. On the other hand, you know applicants and employees have a right to privacy that is protected by state and federal laws. It’s a balancing act: Just how do you protect workers on the one hand, while respecting their privacy on the other?

Here’s a tip that will make courts more likely to uphold your termination decisions. Make sure whatever reason you use to justify the firing also showed up in past performance evaluations. Nothing raises suspicions more than kudos followed by discharge.

Nothing raises suspicions among employees (and juries) than effusive praise followed by a pink slip. So here’s a tip that will make courts more likely to uphold your termination decisions: Make sure whatever reason you use to justify a firing also shows up in past performance evaluations.

Has an employee complained about a supervisor’s alleged discrimination? If so, carefully review any important employment decisions the supervisor subsequently makes. Be alert for potential retaliation.
Q. A replacement line supervisor directed an employee in our plant to use a machine he wasn’t trained to operate. The employee was injured when he stuck his hand into the machine to clear a jam. While the employee was recuperating in the hospital, the plant supervisor fired him for operating machinery he hadn’t been trained on. Does the employee have a right to sue us if the line supervisor ordered him to do this job?
Don’t jump the gun when it comes to firing an employee for breaking a rule. For example, if you have an attendance policy that requires termination after a certain number of absences, be sure the employee actually missed all those days.
Q. A recently terminated employee retained an attorney, who then engaged in pre-suit negotiations with our HR vice president. During those negotiations, our VP disclosed, in writing, some confidential information about the internal investigation that led to this employee’s termination. Negotiations have since broken down and the employee filed suit. Should I be concerned about these pre-suit disclosures coming back to haunt us in the litigation?

Some employees have heard through the legal grapevine that if the going gets tough at work, they can just get going. They believe they can up and quit—and then turn around and sue, claiming that they had no choice but to leave because they were suffering retaliation for taking some protected action. This is an example of “constructive discharge.” But conditions have to be pretty onerous before the tactic works.

If you carefully document wrongdoing, you have very little to fear from a lawsuit—even if you’re wrong. That’s because courts don’t demand perfection from employers—just that they act in good faith.