How to Fire Your Employee

Evaluate Legal Risk:

• Is this a “long term” employee, say employed 5 or more years?
• Will your employee see this coming, or will it be a surprise?
• Have you adequately documented the reasons for termination via write ups and/or documented verbal counseling?
• Is your employee in a protected category (medical condition, disability, sexual orientation, religious beliefs, age over 40, among others)?
• Does your employee have a medical issue or disability that relates in any way to your desire to separate?
• Has your employee engaged in “protected activity,” such as complaining about harassment, wage issues, other workplace related issues?
• Is your employee on a medical/disability, workers’ compensation, and/or any other form of protected leave of absence?
• Would termination seem “retaliatory” for any reason?
• Any other reason that causes you to hesitate?

If you feel you have risk: reconsider termination and consider other options: more training, setting clear expectations, more counseling/discipline/writeups, other measures to mitigate risk.

If you move forward with termination:

• Decide what if any information you will give the employee about the reasons for termination 0-10 (0 = no information; 10 = employee was the subject of a workplace investigation and they are being terminated for misconduct; 1-9 depends on the circumstances, generally how long the employee has been employed, the conduct underlying the termination decision, assessed legal risk of termination).
• Plan the termination meeting (location, time, who will be present).  Terminations should be in person, in a private location/time, and only management should be present — no coworkers.
• Prepare final check — Under California law when you fire someone, you must provide their final check “immediately,” i.e. at the time of termination. Failure to do so can result in up to 30 days’ wages as a penalty for being late.
• Execute on the plan — generally termination meetings will be very short, how short depends on what information you will provide the employee (see above).  Except for exceptional circumstances, termination meetings can be 2-3 minutes in length, enough time to let the employee know their employment is being terminated, provide the generally limited information as to the reason(s), if any, and provide the final check.
• Do not engage in a debate with the terminated employee.  You’ve made up your mind and are not going to change it.  You are not obligated by law to provide an explanation to the terminated employee.
• Do not give the employee a false reason for termination, even if you are trying to soften the blow or relieve yourself of the stress.  It’s better to provide no reason rather than a false one.

The above is provided for informational purposes only.  It is not and does not substitute for legal advice from an experienced employment and labor law attorney.  Specific facts and details are necessary for any attorney to provide sound legal advice.  If you have questions/concerns, call us.