This is when to fire an employee

If you’re not careful, a year or more can go by with an employee who should no longer be working for you. It’s easy to become complacent and overwhelmed by the thought of finding someone new and having to train them, and maybe you don’t grasp what they actually do so it’s scary to cut ties. This article is meant to help you in this decision by giving you some reasons you can and cannot fire employees, and the flags to watch for to determine if it’s time to fire someone.

Are there any laws preventing you from firing someone?

The Equal Employment Opportunity Commission comes in here. Employees who feel they were fired unfairly can file a complaint with EEOC. In general, to comply with the law, you need to make sure you have a cause for firing that is unrelated to the below.

Reasons you CANNOT legally fire someone*

(Many of these apply to companies with 15+ employees and this is not all inclusive)

• Race
• Sex
• Religion
• Age
• Color
• National origin
• Political beliefs
• Refusing to take a lie detector test
• Immigration status
• Pregnancy
• Disabilities- read more about the Americans with Disabilities Act
• Retaliatory reasons such as they filed an OSHA complaint or filed a worker’s compensation claim for on-the-job injury
• Employees who complain about not getting overtime and overtime is due
• Employees who form a union to improve their conditions

Reasons you CAN fire someone**

• Inability to do the job. This can be a lack of productivity or they simply do not meet the quality level required.
• Insubordination by breaking rules or lying, stealing
• Attendance issues with being out (not as part of approved time off under FMLA) or frequently late
• Leaking company trade secrets
• Physical violence, harassment, or other types of threats to employees
• Damaging company property
• Using company property for personal business

The flags you should watch for with examples

1. You have given time to correct a problem, and it is not changing

Say you gave the employee 90 days to turn around a problem with delay, and yet, they are still showing up late. This is a cause to terminate. A 90-day plan can work for various issues as it provides a set time, above the typical 60 days to create a new habit.

2. The employee is dragging down morale

The employee may be creating a feeling of anxiety for people who have to deal with him or her, therefore causing stress and decreasing productivity in all areas. By accepting this behavior, you are telling your other employees it’s okay for people to act this way and cause distress to others.

3. The employee isn’t contributing their share

If other employees can’t complete their projects because this person is holding things up repeatedly, that’s damaging overall productivity. If time has been given with discussion to correct it, and it’s not changing, it’s time.

4. They are violating policies

This could be tied to any one of the reasons you can fire above, but let’s say they bring a weapon to work or are using drugs during the work day and you have no weapons and drug policies, it’s time. You may find employees dating, which violates the policy, especially if it’s a senior leader and direct report. They wouldn’t be surprised to be fired because you have these policies in a employee handbook they signed.

5. The employee loves drama

If one person stands out as always being the center of problems and drama, it’s time. They are taking away from other people’s ability to get jobs done, may be causing stress to others, and costing the company time from management. If there is one common denominator, it’s time.

6. It's a poor culture fit

You may have an employee who brings negativity, or distracts the team as they don’t have a passion for the job. The employee may post things on social media that harm the company's image. These are reasons you need to think about trying to turn it around or train them on what is appropriate for social, and if doesn’t work, then it’s time.

7. You find out their job application was not accurate

This falls under the lying aspect in the above section, however, it may not be an obvious lie. It may take time to find out that they don’t have the qualifications stated therefore making it impossible to get quality work that fits the role. To prevent this, you can do some basic background checks to confirm education and reference checks to verify they did hold the previous job titles. Even then, some still get through.

8. The role has changed

As the company grows, employees need to grow with it. If you’ve offered continuing education and training opportunities and the employee isn’t grabbing on by choice or isn’t capable, this is a reason to let them go. They can then find a role that suits their skillset.

9. You know you wouldn’t hire them again

This should be a flag to you that it’s time to cut ties. If you have an employee and given the choice to hire them again, the answer is a hard no, then you need to find someone else for that role, it’s not working out.

Tips to get started firing someone

1. First and foremost, document every single detail and communicate it with the employee

This covers you in the event the employee does file a complaint with EEOC because you have a series of offenses, but it’s also not a surprise to the employee this way. Things to include are dates of events, the time, the issue in detail, the action taken, and the result. It’s always good to follow up with an employee after a discussion via email or other written form to ensure they acknowledge they were talked to, given a warning, whatever your process may be.

2. 90 days or so before firing

Recapping above, make sure you have documented notes about various incidences with the employee. Make sure the employee has been communicated with on each, and there is proof they acknowledge discussion. This is best for issues with attendance, poor work performance, or other things that can be given time to be worked on. The exception here would be the employee was caught stealing, leaking trade secrets, having drugs or weapons on site, or something along those lines.

3. The month or so prior to firing

Knowing a firing is coming, it’s a good idea to get an inventory of what this person does each day, if you don’t already. Note tools they use, how much contact they have with customers/vendors so that you ensure to stop that immediately at termination. These are things you should already have, but just in case, make sure. You may even want to post a confidential job if it’s a critical role so that you have less of a gap. Some will make the hire first, have the person train the new person, and then let the employee go.

4. On the day of firing

Don’t send a meeting invite. Instead, call them to your office last minute, end of day, and if you have HR, include them as well. I prefer a Friday over a Monday so that office drama has a couple of days to calm down from it. Yes, the employee should know firing is coming because you’ve had multiple talks, warnings, discussions, but not on the day of. This can cause problems with other employees, and disruption.

Let them know they are being let go, be very clear on this. Wish them luck, collect any equipment needed, like company cell phones, and provide any paperwork. Some places choose to mail personal belongings, and some will have someone else gather the items, like an HR rep so there is no further opportunity for communication with the other employees. No further discussion. There is no negotiating this, it’s best to keep it short. Know that this should take no more than 10 minutes.

If you can be calm and collected, speaking with other employees sooner rather than later is a good idea. If you cannot, HR can assist or someone else appropriate on the team. A firing will likely provide relief to the rest of the team, but if it’s a case where it wasn’t a public reason, like stealing, your other employees may be on edge thinking more people are being let go.

To Recap

Remember that no one wants to be in a position to fire someone. However, sometimes you’ve tried all you can, and people are not a good fit. You are doing yourself, the employee, and the team a disservice by allowing employment to continue if you see the above flags.

Don’t forget you have a whole company of people watching your actions and what you choose to accept, setting the tone for what’s acceptable. One bad hire can destroy an entire company.

*These are general guidelines and not the advice of an attorney. Seek an employment lawyer for specific guidance in your state.

**These are general guidelines and not the advice of an attorney. Seek an employment lawyer for specific guidance in your state.

Written by Nicole Hullihen, August 11th, 2023