How to Fire Someone from Your Small Business

A version of this article previously appeared on AvvoStories

Do you want to fire someone? If so, then this article might save your company thousands in legal fees.

As an employment lawyer, I’ve represented employees in lawsuits against companies who screw up terminations. Some of my best cases would not have been cases at all had the business owner used a little common sense before terminating my client. Consulting a basic termination checklist could have kept them from feeling the sting of a lawsuit from my office.

Most small business owners do have some sort of termination checklists like this – which is just a list of administrative things to do before or after the termination. But that’s not what I’m talking about. My list is specifically focused on protecting your small business from an expensive wrongful termination lawsuit.

There are fundamental questions that a business owner should honestly ask himself or herself prior to terminating an employee. If you answer all the questions with “No,” then you can fire the employee and it’s unlikely the employee will successfully sue for wrongful termination. If you answer any of the questions with a “Yes,” then you should seek employment legal counsel before terminating the employee.

Here are my top three questions for a termination checklist:

1) Did the employee recently report to the company any unethical activity, violations of law, or any type harassment or discrimination?

If your answer to this question is “Yes” then do not fire that person until after you’ve had the entire situation reviewed by an employment lawyer. Depending on jurisdiction, generally it’s unlawful for an employer to terminate an employee for complaining about violations of law, discrimination, harassment, or workplace safety.  There are many other protected categories, but this is a great start.

If the employee has complained about any of these things in the last few months, then no matter what you say to the contrary, they are going to think that the real reason for their termination is their complaint.

This may require some investigative work on your part. First, look up his employee file or see if he has recently filed any complaints with HR. Second, check with his immediate supervisors to see if the employee has complained to them verbally or in writing. If the employee has complained about something, then don’t fire them until after you’ve had the situation reviewed by an employment lawyer.

2) Were you ever disrespectful, rude, or callous to the employee you want to fire?

I’ve said it a thousand times—people don’t sue their boss because the law was broken, they sue because they feel like they were treated like garbage. People don’t know the law, but they do know when they are being treated poorly. Part of your termination checklist should be an honest, gut level, review of how you as the small business owner treated the employee.

Did you ever yell at the employee? Did you write her up for silly things – like being tardy when she was only two minutes late? Did you have your bulldog manager deal with the employee? Did he ever treat the employee poorly? If you answer yes to any of these questions, you need to remedy the issue before you fire the employee. If you don’t, then the first thing they are going to do after they are fired is get on Google and research a lawyer like me. You don’t want that to happen.

3) What is the real reason for the termination and does the company lack written evidence to support this reason?

Lawyers love documents: write-ups, emails, text messages, and handwritten notes are the golden nuggets that we use to win cases. By and large, employment lawyers win or lose based on documentary proof. Therefore, you want to make sure you have a documentary ability to support your argument that you fired the employee for the reason you terminated them.

Generally, most states are at-will employment states. This means that a small business owner may terminate an employee for pretty much any reason or no reason at all so long as it is not an illegal reason. Still, it’s always good practice to have a legitimate reason. Otherwise you’ll just look like a jerk in front of the jury.

If the reason for termination is poor performance, make sure there is documentation showing poor performance over a period of time. Inappropriate conduct in the workplace? Make sure there are documents and witnesses that support your claims. You get the picture; make sure you have some type of proof to verify why the employee was fired. While this seems pretty fundamental, I’ve had several cases where the small business owner has zero documentary evidence to support his arguments. As a small business, this kind of mistake could kill your company.

This article was written by 
Branigan Robertson is an employment attorney in Irvine, California. He is a member of the California Bar and the California Employment Lawyers Association. He exclusively represents CA employees in lawsuits against employers and focuses his practice on harassment and wrongful termination. Branigan also writes for AvvoStories, brought to you by Avvo, the leading online legal marketplace connecting consumers and lawyers. Avvo’s free Q&A forum with more than 9 million questions and answers, along with on-demand legal services that provide professional counsel for a fixed cost, make legal faster and easier.