Three Questions to Ask Before Terminating an Employee

Whether it is a no-fault layoff or a discharge for misconduct, terminating any employee is tough. No employer wants to lose a valued employee, and no employer wants to be sued. To help you sleep at night, and to manage risk effectively, be certain you know the answer to these inevitable questions before you let any employee go.

• “Why?”

This is always the first question any employee will ask, so practice (out loud) articulating a reasonable and legitimate basis for discharge. You should feel comfortable sitting across the table and providing this explanation to:

• The employee
• The employee’s family
• The employee’s attorney
• The Employment Department
• Oregon’s Bureau of Labor and Industries or
• The federal Equal Employment Opportunity Commission
• A judge
• A jury

“Reasonable and legitimate basis” means that the rule was clear and reasonably related to the orderly, safe, and efficient operation of your business, and your performance standard is consistent with what most people would think of as that which an employer has a right to expect from an employee.

• “Why now?”

Timing is everything, and any good employment law attorney will ask this question to assess whether you, as an employer, were motivated by a proper or improper reason. Are you reacting in good faith to a recent egregious incident of misconduct? Or, does the timing of your decision coincide with an employee’s recent change in protected status, such as a workplace injury, a pregnancy, or a harassment claim? This most often happens when a supervisor allows poor performers to linger and only decides to take action when the employee becomes “high maintenance” in other, often legally-protected, ways. Even a valid basis for termination can be challenged if it even appears as though it was used to justify an invalid motive.

• “Why me?”

If you’ve even been laid off, you’ve asked this question. You probably wanted to know why you were chosen instead of another member of your workgroup. Was it your performance, or tenure, or something else? Ideally, you will have a job-related basis and solid performance documentation to help explain your decision.

When terminating for misconduct, take a look around and be sure that there is no other member of the team that has engaged in similar forms of bad behavior that is still employed. If there is, find out if there is a solid, job-related reason an exception was made in that case and determine whether the employee in question is eligible for similar leniency.

Remember, if you are faced with a termination decision, we are here to help you analyze your process and answer these questions.

Patrice