What is the Key to Terminating an Employee

When Terminating an Employee: Consistency is Key

Whether it’s a termination, constructive discharge, layoff, or forced resignation, ending an employment relationship can be tricky and you should navigate carefully and make sure you are properly prepared.

Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can expressively impact how you handle employees before terminating them.

It’s important to remember that any discipline including termination must be applied consistently among all employees.

For example, if you suspend employee A for misconduct but terminate employee B for engaging in the same misconduct, you may find yourself in a difficult position.

Inconsistent termination practices are difficult to justify and an employee may try to argue that he or she received more severe discipline due to a protected characteristic such as race or gender. In a lawsuit, employee B can easily suggest that his dismissal must have been for some illegal reason rather than for his misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it will be difficult to prove, especially if you do not have proper documentation.

In addition to maintaining consistent termination practices, you should ensure that you keep a written record of all discipline. Even if the employee only receives a verbal warning, there should be some note in their personnel file.

Written records make it easier to show a jury or judge how you advised employees that their conduct was unacceptable and gave them another chance. It’s difficult to later argue that you based your termination on the employee’s conduct when there’s no record that you ever disciplined the employee for the issue.

You should look at every termination decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions.

Whenever you require HR advice or help navigating the ever-changing landscape of California and Federal Employment Laws and Regulations, call for a no obligation consultation.

eqHR Solutions is a leading human resources consulting firm providing tactical and strategic human resources support, plus ADP payroll product training, for all size businesses in Southern California and the San Francisco / Bay area.