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Preparing to Fire an Employee

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Preparing to Fire an Employee


By DeAnn Chase January 22, 2019    Category: Business Law    

Preparing to Fire an Employee

In California, employees are regularly hired “at-will,” meaning that companies can, and do, let them go at any time and for (just about) any reason. However, there is more to letting someone go than just saying “you’re fired” and escorting them from the building. Because of the likelihood of an employee-employer relationship turning sour upon termination, it’s a particularly good idea for a company to have a formal, objective termination policy in place. A termination policy can also help to protect your business in instances of accusations that an employee was let go for a reason that is not legally permitted.

Craft Termination Policies

When crafting your termination policies, it’s helpful to get the advice of an experienced business attorney to make sure your business adheres to the federal and state laws that govern termination. For example, if you’ve asked an employee to do something illegal, there are laws that state that you can’t then fire the employee for refusing. Similarly, the California Fair Employment and Housing Act (FEHA) has strict anti-discrimination requirements that apply to businesses that employ five or more people. In addition to protecting workers on the basis of race, religion, pregnancy, gender, and disability, FEHA also protects workers from being terminated on the basis of marital status, sexual orientation, political affiliation, military status, and more.

Once you’ve taken the time to put together your termination policies, it’s important to make sure you and your management are following them consistently. You should also have a system for documenting the types of infractions that can lead to dismissal so that, if your decision to fire someone is ever questioned, you can pull out the documentation of the problematic behavior.  This documentation should include an employee acknowledgment whenever possible, to avoid future instances of “he said-she said” arguments. Additionally, if your policy states that employees are entitled to a chance to fix the problem, documenting every notice you’ve sent is also important, to demonstrate that you have provided them with the proper chance.

Keeping good paperwork and consistently following your policies are the best ways to mitigate the risks associated with terminating an employee.

Steps to Firing an Employee

Before the decision to fire someone is made, it’s important to critically review the case. In instances where multiple employees are being terminated, each case should be reviewed individually. You want to determine red flags such as whether the employee falls into any protected classes (which can heighten the likelihood of litigation), whether the employee has a contract and what that contract states, the situation surrounding the decision to terminate, and whether any required notices have been delivered to the employee.

After analyzing the situation for any potential red flags and ensuring that your ducks are in a row in terms of proper documentation, it’s time to consider the logistics of the firing itself. For instance, it’s important to map out the conversation you’ll have with the employee, when you’ll have the discussion, and whether you have an appropriately private place available to have the discussion. You should also prepare a final pay check, which in California must be paid to a terminated employee on their final day. In some cases, it may help to offer access to outplacement services or a severance package to departing employees to ease the financial strain.

Making the decision to fire an employee is rarely an easy one, and it is a process that should be approached with appropriate caution. While you cannot control the economy or your employees’ actions, you can put procedures in place to protect your business in the event that termination needs to occur.

Chase Law Group, P.C. can help you craft a packet of termination paperwork for your business, as well as advise you on appropriate termination policies. Our experienced team can also help you figure out how to handle specific situations as they arise within the bounds of state and federal law. Give us a call at (310) 545-7700 to set up a consultation.