How to Fire an Employee Legally

When Discipline Isn’t Enough… Termination for Cause - A Best Practice Approach

An inevitable and often uncomfortable aspect of a manager’s job is terminating employees.  Termination may be the final step after progressive discipline fails or it could arise from such egregious action on the part of the employee that immediate termination is warranted.



Progressive discipline to correct unacceptable behavior

Certain actions by an employee may result in warning and discipline intended to correct unacceptable behavior.  This could include such things as: tardiness, absenteeism, sub-standard performance, and inappropriate dress, language or other actions in the workplace.  Progressive discipline serves two main purposes.  First, it is intended to bring to the employee’s attention that his or her conduct is unacceptable and needs to change. Secondly, progressive discipline, properly documented, serves as a basis for proving good cause for termination if the bad behavior cannot be corrected.


Progressive discipline is not suited for all situations though and there are times when a manager must take immediate action and terminate an employee on the spot.  Examples of such egregious behavior include: intoxication, drug use, fighting, theft, and gross insubordination.  These are merely a few examples and can include a variety of other actions. 



Discipline and termination starts with a good employee handbook 

It is critical for the employer to establish and disseminate a code of acceptable and unacceptable behavior.  Equally important is the need to spell out the type of discipline the employee will likely face including warning, suspension, and even termination.  By creating a “zero tolerance” standard for certain serious actions, employees can be on prior notice that immediate termination for such violations is highly likely.  Once established, however, it is incumbent upon the employer to reasonably and consistently apply and enforce the policies established.  It is only through this process that employees can learn what is unacceptable and the likely consequences they will face for violating the norms. 



Questions that every employer should ask to help determine “just cause” include:

  1. Did employees have advance notice of possible or probable disciplinary consequences of their conduct?
  2. Is the rule reasonably related to a legitimate business purpose that lends to an orderly, efficient and safe operation of the company’s business and performance?
  3. Has investigation determined that the employee did in fact violate or disobey the rule or order?
  4. Was the investigation been conducted fairly and objectively?
  5. Do the results of the investigation support disciplinary action by revealing substantial evidence or proof that employee was guilty of misconduct as alleged?
  6. Are investigations and enforcement applied fairly and uniformly, without discrimination, to all employees?
  7. Does the degree of discipline reasonably relate to: (a) the seriousness of the employee’s proven offense; (b) the discipline applied to other employees similarly situated; and (c) does it take into consideration the employee’s length of service with the company?



Never forget to make terminations human and humane

Timely and accurate documentation of employee discipline and termination is critical in the prevention and defense of suits for wrongful termination.  However, while you can do everything possible to protect yourself legally, you can never ignore the human side of terminating an employee’s job.  It is imperative that one empathize and try to understand what the terminated employee is going through.  You nearly always have the opportunity to treat the terminated individual with respect and dignity.  Rarely a week goes by when you don’t hear about a serious incident of workplace violence.  It is so common that society has coined the phrase “going postal” to cavalierly describe the phenomenon. 


The following is a how Wikipedia identifies the phrase “Going Postal” :


“…in American English slang, means becoming extremely and uncontrollably angry, often to the point of violence, and usually in a workplace environment. The expression derives from a series of incidents from 1986 onward in which United States Postal Service (USPS) workers shot and killed managers, fellow workers, and members of the police or general public in acts of mass murder.”


Many, if not most, of these incidents are set-off by former employees who were terminated from their jobs.  Nothing can justify acts of workplace violence but managers can try to address terminations with respect and dignity to avoid inflaming what can be a very emotional and devastating experience for most workers.



Laws you must follow when you fire employees

Employers must follow certain laws when it comes to terminating employees.  Depending on your location, you may need to hand the employee his or her final check at the time of termination.  You may need to pay accrued vacation immediately.  An employer may also which to draft a letter to be signed by the employee that they received his or her final check and that all company property has been returned to the employer: keys, pass cards, computers, phones, etc.  The employer may need access to computer and program passwords, etc. that the employee setup.  Employer’s need to determine if the employee owes the company money or reimbursement for any items and whether such debts can legally be deducted from the employee’s final pay.




In short, terminating an employee should not be a knee-jerk emotional reaction for an employer but rather a well thought out process that protects the company from legal retaliation and more importantly protects the safety and security of the workplace. Back Office Remedies is here to help you create an employee handbook and terminate your employee in a proper way. Contact us today for more information.



Written by Paul McFarling - Legal Counsel

Updated on September 28, 2017 13:12