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Ask Leslie: What Should I Consider Before Terminating An At Will Employee?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:


We have decided to give up on one of our employees who just can't seem to perform her job duties accurately. Her mistakes cost us a lot of time and, in some instances, money. What should we consider?


Signed: Jake


Dear Jake:

You are wise to pause and evaluate your decision. There are a lot of considerations that should be made before terminating an employee. Let me discuss just a few here.

Generally speaking, an at will employee can be fired any time, for any reason, with or without notice. However, it is a best practice not to terminate an employee without careful consideration and documentation of the reasons and events that led to the decision, should you have to defend your decision in court someday.

Put yourself in the shoes of a jury who would review your decision. The jury would want to know if your decision was fair; that is, did you act reasonably and fairly as to this employee under all the facts and circumstances? And, of course, if the employee can see the termination as at least fair, that will go a long way toward reducing the likelihood of any future litigation.

Ideally, you would have documentation of all the times you corrected this employee and discussed her mistakes. That documentation should be dated, detailed with facts (not opinions or feelings), and indicate the costs to the organization of time, money, or both. The documentation should also reveal any extra training and action plans for improvement you provided the employee.

Discuss your termination plan with your legal counsel to make sure there are no other circumstances that would have you reconsider your plan at this time. For example, did this employee recently file a worker's compensation claim; complain about discrimination or harassment; or announce she is pregnant or intends to become so? These are just a few facts that can increase termination risks.  

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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