42950223_sThe process for terminating an employee is fraught with minefields for employers, and mistakes are common. The biggest termination mistakes include not explaining the reason for termination, inconsistent application of termination policy, and treating departing employees poorly. Termination is a stressful undertaking, and many people make the mistake of hurrying through the process. But if not done with care and attention to important details, terminating an employee can create more legal liability for the company than it solves.

Here’s a checklist of the most important things to focus on in the termination process when terminating an employee to avoid legal liability.


Before the Termination

Before you make a decision about terminating an employee, it’s best to review the situation to make the decision to terminate and then make a plan.

  • Before terminating an employee for performance, review all of their files and documentation, including any employment contracts, non-competes and confidentiality agreements. The Society for Human Resource Management (SHRM) recommends making sure that termination is not a surprise to the employee and is supported by written documentation after a failed performance improvement plan.
  • Make sure there is a clear reason for terminating an employee, supported by company policy and documented disciplinary action.
  • Determine if the employee is in a protected class, such as pregnant women or someone with a disability, and if so, review the reason for termination with legal counsel.
  • When the decision about terminating an employee is final and supported properly, plan the place and time for the termination meeting, including scheduling a witness or other management person to be present and act as security. Be sure to meet in a private location and preferably a neutral place like a conference room.
  • Determine when the company legally must provide final pay and if any additional pay for unused vacation or sick time is to be paid and coordinate it with payroll.
  • Notify the IT department of the pending termination and have them remove access to computers and company systems, including any remote access, during the termination meeting.


During the Termination

  • SHRM recommends having the employee’s direct supervisor be the one to lead termination proceedings when terminating an employee.
  • Don’t tell the employee the reason for the termination until you are in a private location, and then give the reason clearly and without any embellishment. Introduce evidence of wrongdoing or unresolved performance issues, and tell the employee that access to company property, systems, and communications has been severed.
  • Ask for company property to be returned including phones, computers, keys and keycards, company documents, and company vehicles.
  • Pay attention to any claims of discrimination and ask the employee to explain what they are talking about so you can investigate. Check out any claims of discrimination and contact a lawyer if necessary.
  • Don’t get emotional with an employee during the termination meeting, and pay attention to the employee’s feeling and emotions. If anger or erratic behavior start to interfere with the termination proceedings, end the meeting immediately.
  • Legal experts with NOLO.com recommend providing any final paperwork during the termination meeting, including any severance paperwork, contact information for future questions, and information about insurance and benefits, as well as being prepared to answer the employee’s questions about how to get personal belongings and how to leave the building after the meeting.

After the Termination

  • After terminating an employee, do not let them walk through the company unescorted. There should be no opportunity to talk to other employees or to destroy company property or sabotage company business. Either walk with the employee back to the work area to get any personal belongings or make arrangements to meet at a future time to do so.
  • Give the employee a termination letter outlining the termination reason(s) given in the meeting.
  • Give the employee any final pay, either in person or by mailing it to them.

Announce the termination to the company in neutral terms, without revealing the reason, and make sure to let people know who will follow up on any projects or clients the terminated employee had.


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