Deciding to Fire

by Lisa Guerin, J.D.

How to decide whether it's time to let an employee go.

1. Investigate.
If you are considering firing a worker for misconduct, your first step is to investigate the incident and figure out what happened. There is always the possibility, no matter how slim, that things are not as they appear to be. And the worker might have an explanation or reason for the misconduct that is not immediately apparent.

2. Check the files.
Never proceed without reading the worker's personnel file. What you find -- and what you don't find -- can have important legal repercussions. For example, if you are trying to figure out whether to fire someone for persistent problems (poor attendance or performance, for example), you should find some indication in the file that the employee was informed of these issues and given an opportunity to improve. And you should look carefully for any evidence of an employment contract limiting your right to fire the worker at will. (For more information, see Firing Employees With Employment Contracts.)

3. Review your written policies.
Read through your employee handbook, personnel manual, and/or any other written policies that have been in effect during the worker's tenure. Do they give the worker sufficient notice that his or her conduct could result in getting fired? If you have a progressive discipline policy, have you followed it? Do your policies place any limitations on your right to fire workers at will?

4. Consider what the worker has been told.
What you say to a employee can be just as important as your written communications and policies. Have you -- or anyone in authority at your company -- said anything that contradicts your written policies and the documents in the personnel file? For example, have you led the worker to believe that he or she would not be fired despite performance or other problems? Have you promised to give the worker time to improve? Has anyone made statements to the employee that could come back to haunt you in a lawsuit -- for example, statements that could be construed as discriminatory or harassing?

5. Compare how you've treated others.
A fired employee's most effective argument to a jury is that you've acted unfairly, by treating the employee differently from others who have been in the same position. If you have always treated your employees by the same rules, you don't have to worry. However, if you've been inconsistent, you should have a valid reason for treating workers differently -- for example, one worker's performance problems lasted longer than another's, or one worker's misconduct was more serious. If you don't, you risk a discrimination claim.