Wrongful Termination: FAQs

Terminating an employee can produce a volatile employment situation. Wrongful termination claims lurk behind every discharge decision. So employers must know what to do before, during, and after termination to ensure the entire process is fair and legal.

FAQs about wrongful termination

1. What factors must an employer consider before terminating an employee in order to avoid a wrongful discharge claim?

Because firing an employee is a potentially volatile employment action, it is essential that you handle every termination fairly and consistently, lest you face potential legal problems, such as a wrongful discharge claim. Here are some of the questions you should ask yourself before terminating an employee in order to avoid termination legal trouble.

  • Will the employee be caught off guard? An employee who is terminated without a chance to turn things around or explain his/her side of the story is more likely to sue for wrongful termination. If an employee’s work is unsatisfactory, tell him/her exactly what needs to be done to improve. If the employee’s job is in jeopardy, make sure he/she knows that, as well.
  • Have I followed termination policies to the letter? Review your company’s personnel policies on termination prior to making any discharge decision, and make sure they are being applied in a consistent and fair manner. Employees who are fired without the benefit of progressive discipline or warnings may cry foul in court.
  • Is the employee being treated the same as similarly-situated co-workers? Consider how other employees have been treated in similar circumstances. You may get slapped with a lawsuit if you terminate an employee for an infraction that only warranted a written warning in the past.
2. What factors do the courts use to determine if termination is an appropriate penalty?

When an employee is terminated for a rule violation, the courts and arbitrators will look at the following to determine if termination is the appropriate penalty:

  • whether the employee was aware of the rule;
  • whether he/she was warned about the possible consequences of breaking it;
  • what the employee’s previous employment record is; and
  • how other employees have been disciplined in the past for similar infractions.

3. What steps must an employer take to make sure its discharge decisions are handled properly?

Here’s a checklist employers can use to make sure all their discharge decisions are handled properly — and legally.

  • All normal steps of progressive discipline have been completed.
  • The employee has been repeatedly counseled and assisted regarding performance deficiencies, but there is no realistic hope for improvement.
  • All alternatives such as transfer and retraining have been considered.
  • All steps have been fully documented and records included with the Recommendation for Discharge.
  • The Recommendation for Discharge and all supporting documents have been submitted to Human Resources.
  • The director of Human Resources has authorized the discharge with a signed statement.
  • The employee has been given written notice of his/her termination.
  • Payroll has been notified of the termination.
  • All necessary security items and other company property have been obtained from the employee.
  • The employee has been referred to Human Resources for further processing.
  • All records of this case are forwarded to Human Resources.