Compliance/Best Practices Employment Law Legal Topics

What Not to Do When Terminating an Employee

Employers can substantially minimize the risk of wrongful termination litigation by ensuring that employees are treated fairly in the termination process. Here are the mistakes most often made by employers in the termination process and what to do instead.

  1. Lying about the reason for termination. Employers often make the mistake of providing the employee with a reason for the termination that later proves to be false.
  2. Treating the employee more harshly than others. It’s a mistake to terminate an employee for poor performance or misconduct when other employees haven’t been terminated in similar circumstances.
  3. Basing termination on minor or extraneous issue. Terminating the employee for a reason that is trivial or unrelated to the needs or goals of the business is usually a mistake.
  4. Breaking employer’s own policy. Employers should never terminate an employee in violation of company termination or discipline policies.
  5. Breaking the law. It’s always a mistake to terminate an employee in violation of a state or federal statute, such as state and federal antidiscrimination laws.

To avoid these mistakes, the employee’s supervisor, a human resources representative, and legal counsel experienced in wrongful termination law should meet to review the termination decision before anything is done or said to the employee. The purpose of the meeting should be to ensure that all appropriate steps have been taken to minimize the risk of wrongful termination litigation.

One way to minimize the risk of a wrongful termination action is to flip the common mistakes into requirements, i.e., to review the termination to make sure that it doesn’t violate company policies, past practice with respect to other employees in similar situations, or any local, state, or federal statute.

Another way to reduce risk is having proper documentation to corroborate the termination and giving the employee a properly drafted notice of termination.

It’s also important to determine whether alternatives to termination have been considered, such as suspension or probation.

For guidance throughout the discipline and termination process, turn to CEB’s Advising California Employers and Employees, chap 17. You’ll find a checklist for reviewing termination procedures in §17.93.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 replies on “What Not to Do When Terminating an Employee”

Unless the employment contract requires specific reasons for termination, I normally urge employer clients to give no reason for the termination, simply say that the company is moving in another direction and we wish you the best. Is there a danger in this strategy?

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