Being knowledgeable and following the current State, labor, and employment laws laws, being consistent, preparing a termination script, having someone be present during the meeting and making sure that several warnings have been previously issued, making sure the employee leaves with all of their possessions, and safeguarding company’s property are best practices for letting go of an employee in the United States.
Other helpful measures to consider are revisiting company policies, going over the case to ensure that no discriminatory practices or any possible whistle-blower retaliations were involved, evaluating the legal risk, going over the company’s policies and agreements, and protecting confidential information.
You’ll find more details on our findings as well as a deep dive into our research methodology, below.
In order to identify the best practices when firing an employee in the United States, we started our research by looking for legal and career-oriented websites, case studies, and websites in the HR sphere that might provide valuable insight and helpful advice for any employers going through this particular process.
Our initial focus was to scour the websites of the main employment-related organizations in the United States since these official sources are the most likely to include relevant, up-to-date, and official legal information that is probably used as a data source for most all other research papers and articles on the subject. We studied the websites of the United States’ Equal Employment Opportunity Commission, The United States Small Business Administration, and the United States Department Of Labor, noting all relevant information, case studies, and best practices geared towards employers looking to lay off employees in a smooth and fair manner.
In order to support and complement our findings, legal, and HR-sphere websites and industry news publications such as the US and Canada-based business law firm Blake, Cassels & Graydon LLP (Blakes), MEA (MidAtlantic Employers’ Association), The Balance Careers,WiseStep, Entrepreneur Magazine,
Finally, we gathered additional tips and insight from industry-relevant websites that published articles around the subject such as the nonprofit organization Mission Box and operations magazine Auto Dealer Today.
We ensured that the sources used are relevant to this day by only using those that comply with our two-year recency parameters.
1. STUDY STATE AND INDUSTRY EMPLOYMENT LAWS
Different states have a variety of employment laws and regulations. For example, in some states, the number of employees in an organization affects which laws apply to the business. It is recommended to consult with an employment law attorney or a competent HR professional to make sure all regulations are observed.
The particularities of the case should also be considered as current regulations protect workers from employment termination under a set variety of instances, such as employee harassment, discrimination, or unsafe working conditions. Employees considered “whistleblowers” that might have previously reported of any such situations in the workplace might be protected by law from termination.
2. ISSUE SEVERAL WARNINGS
A number of warnings should be issued before considering laying off an employee. Failure to do so can be interpreted under a bad light for the employer in court, should this instance arise, and even prevent the employee’s dismissal. The employer should also consider giving the employee a considerable amount of time to comply with the warnings. Courts are generally reluctant to accept an employer’s claim in cases when the cause for dismissal is limited to poor employee performance. Therefore, making sure that there is evidence proving the fact that a considerable amount of time was given to the employee to improve their performance is vital.
3. REVIEW RELEVANT POLICIES, PRACTICES, AND AGREEMENTS
This review is important because the termination process has to follow any established protocols set by the organization. For example, particular circumstances for termination might apply if the employee has a severance policy in place. Employment agreements and offer letters must be revisited to identify if the employee has engaged in any form of non-disclosure, non-solicit, or non-compete agreement. If so, these should be addressed at the termination meeting.
Make sure that all business practices align with the current industry regulations and adhere to labor laws in order to protect both the company and the employee.
4. EVALUATE THE LEGAL RISKS
Perform a general risk assessment, addressing the relevant position or status of the individual relative to the rest of the organization. For instance, terminating the oldest employee has a higher risk than terminating the newest one. The legal aspect of this risk evaluation should cover any documentation supporting the termination, prior warnings, and any disciplinary measures.
5. THINK THROUGH THE PLAN
Create a conscientious plan when carrying out a termination procedure. Some important aspects to consider are the people that need to be involved in the termination process, the reason for termination, what will be discussed, how and where the termination will occur, and if any follow-up resources or support will be offered to the employee.
6. PROTECT CONFIDENTIAL INFORMATION AND PROPERTY
7. PREPARE A TERMINATION SCRIPT
Discuss any potential references, post-employment benefits, post-employment agreements, and obligations (such as non-compete agreements). Be detailed in preparing a script that clearly documents the reasons for termination, particularly when it relates to poor performance, in order to avoid unnecessary difficulties if litigation occurs.
8. MINIMIZE THE EMPLOYEE’S DISCOMFORT DURING THE TERMINATION MEETING
Set up a termination meeting at a time and location that are unknown by the employee’s coworkers. The end of the working day provides the employee with a good opportunity to pack up his or her personal items when their coworkers are not around. Also, if necessary, assign a person to stay with the terminated employee at this point and prevent them from touching the company’s computer or any documents.
At least two representatives of the organization should be present in the termination meeting. One can conduct the termination while the other takes notes. If the employee becomes hostile, a lawyer might be involved as well.
9. AVOID DEBATING YOUR DECISION
The termination meeting should be straightforward and brief. If the employee tries to debate, they should politely be informed that the decision is final. It is not recommended to apologize for the decision or try to justify it to the person that has been laid off. Instead, go over the post-termination arrangement, any employee benefits, or unused vacation pay and their terms.
10. DETERMINE WHEN AND HOW THE EMPLOYEE WILL LEAVE THE PREMISES
11. PROVIDE THE TERMINATED EMPLOYEE WITH EVERYTHING THEY NEED
To recap, we have outlined the best practices for firing someone in the United States, as well as details about our thought process when selecting the most relevant sources from which to gather these insights.