Termination due to poor performance is potentially litigious. Even employers with established policies, effective performance appraisal systems, and apparent good cause for termination should follow proper procedures in making the decision and carrying out the discharge.


Consider suspension first. Suspending the employee gives you time to look into the situation and consult with counsel or a third-party prior to making the decision to terminate.


Thoroughly investigate the facts. Take time to review the details of the situation. Talk with the employee to establish his or her perspective. Obtain statements from witnesses. Review all related documentation. Outline the facts of the situation.


Follow your employment policies and handbook. The policies should state that they are not exhaustive and that an employee may be disciplined or discharged due to reasons not specified in the rules. However, when taking any disciplinary action, use the language of the established rules to describe the perceived infraction.
Examine records of employees with similar infractions. Compare both performance histories and disciplinary actions taken.


Be aware of the circumstances that may allow an employee to argue that race, sex, religion, or age played a part in their discharge. Investigate for the possibility of disparate treatment.*


Determine if the discharging this employee would violate any federal or state laws. Don’t rely on “employment-at-will.” Concerted activity, a work-related injury or regulatory reporting may suggest retaliation as the reason for discharge.


Document the basis for the discharge. Compose a termination report outlining the facts, citing the related policies, clearly defining the reason for the decision, and identifying the final decision-maker.


Consider a checkpoint prior to discussing disciplinary documents and performance appraisals being discussed with the employee. Utilize a human resource professional or another authoritative third- party to review the documents. An objective appraisal of documentation often yields new insights or recommendations useful in meeting with the employee.


Rehearse your meeting. Go over the message, anticipate questions, and formulate your answers before you meet. Consider having a witness present.


Contact an attorney for advice prior to taking any action if this may be the case.

Don’t Try To Soften The Blow

• Ensure accurate performance appraisals. Many supervisors tend to give higher ratings believing it’s motivational or fearing confrontation. However, inflated evaluations aren’t fair to employees and may cause problems for employers, especially if poor performance eventually leads to a disciplinary action.
• In the case of a discharge, give the employee the real reason for termination. A U.S. Supreme Court case, Reeves v. Sanderson Plumbing Products, Inc. held an employee must establish basic facts supporting discrimination and then show that the employer gave a false reason for discharge. Also, employees want to know what caused their termination. It allows them to move forward rather than question the cause.

Click below to download this newsletter.