Employee discipline and termination are never easy or pleasant tasks for the Employer, however the manner in which they are handled may greatly impact whether the Employee seeks legal redress against the Employer, and if so, the success of any such action. Even non-meritorious claims by disgruntled former Employees require costly legal defense and cause disruption to the Employer's business.

Although termination works a hardship on almost all employees, statistics indicate that the Employee who believes he or she was treated unfairly by the Employer is much more likely to sue or file a claim for wrongful discharge, whether or not he or she has viable grounds for such a claim. It is also important to remember, that if such a claim reaches a jury, that jury will, more likely than not, be populated by employees or former employees than by human resource managers. In the final analysis, the jury will base its determination on whether the Employee was treated fairly by the Employer.

By consistently enforcing its personnel policies and procedures and by following a few precautionary procedures, the Employer can reduce its exposure to employment claims by employees and place itself in the most defensible position possible when claims are brought against the Employer.


The most basic rule is that, unless the Employer consists of one individual, no employment decision should be made by any one individual. In a large organization, all terminations should be reviewed objectively by a department head or Human Resources manager who does not have a direct reporting relationship with the employee whose employment is being terminated. In a smaller organization, at least one other manager should review the grounds for termination and approve the termination decision.

The following is a checklist of factors which affect the termination decision. This list is by no means exhaustive and is intended as a guide which should be reviewed by the Employer and consulted whenever a termination is being considered.


  • Did the Employee have adequate notice of the performance standards expected of him or her?


  • Was the employee counseled on his or her performance deficiencies and given an adequate opportunity to improve prior to termination?


  • If the performance deficiency was claimed to be related to a disability, were steps taken to reasonably accommodate the Employee?


  • Does the file documentation adequately support the performance deficiencies and counseling attempts?


  • Are there written statements and/or credible witnesses to support the Employer's position?


  • Does the Employee's prior disciplinary record support termination at this time?


  • Is there progressive discipline, if appropriate, documented in the file?


  • Is the Employee's prior misconduct and or failure to respond to corrective action documented in the file?


  • Can the Employer demonstrate that its treatment of this Employer is consistent with its treatment of previous employees who were similarly situated?


  • Is the decision to terminate timely in relation to the triggering event and resulting investigation?


  • Did the Employee have adequate notice of the standard of conduct or policy that was violated?


  • Did the Employee receive all warning, written and oral, required by Employer's policies and procedures?


  • Is the rule, policy or standard of conduct violated reasonably related to the orderly safe and efficient operation of the business?


  • Were all of the Employer's policies and procedures followed prior to the decision to terminate?


  • Is probation or suspension required before termination?


  • Is a final warning appropriate?


  • Would transfer of the employee or a leave of absence alleviate the problem?


  • Did the Employer conduct a thorough and neutral investigation of all events leading up to the decision to terminate?


  • Did the investigation include the Employee's version of events surrounding the alleged misconduct?


  • Are there any extenuating circumstances justifying a lesser penalty?


  • Is the Employer's treatment of this Employee consistent with the Employer's treatment of other Employees who engaged in similar misconduct or policy violation?


  • If this is a first offense termination, were other employees who engaged in the same or similar conduct terminated on the first offense?


  • If the alleged misconduct is claimed to be related to the employee's religious beliefs or a claimed disability, were reasonable steps taken to reasonably accommodate the employee?


  • Have all of the reasons for the decision to terminate been identified and articulated?


  • How long has the Employee worked for the Employer?


  • What is the Employee's age?


  • Are pension rights or stock options due to vest shortly?


  • Is the Employee a member of a protected class under state or federal anti-discrimination laws?


  • Racial or Ethnic Minority.


  • Female.


  • Female in a job category traditionally dominated by men, e.g. Firefighter.


  • Over 40 yrs old.


  • Handicapped or Disabled.


  • Pregnant or pregnant with a pregnancy related medical condition,


  • Suffered a work related injury.


  • Claims performance problems attributable to drug or alcohol abuse.


  • Has the Employee Engaged in Protective Activities while employed?


  • Filed a Worker's Compensation Claim or testified concerning another employee's claim.


  • Made a Complaint of Sexual Harassment or Discrimination.


  • Made a Complaint of Racial Harassment or Discrimination.


  • Made Complaints or charges of Unsafe Work Conditions.


  • Made complaint of Unfair Labor Practices.


  • Made complaint of other Illegal Activity or Practices by the Employer.


  • Served on a jury or engaged in military service.


  • If the stated reasons for termination are based on adverse business conditions, can the Employer establish by credible evidence that this particular employee was not selected for termination on a pretext.

If examination of a termination decision in light of the foregoing considerations reveals fairness flaws or other risk factors, you should contact counsel to discuss other alternatives or ways in which you may reduce the risk associated with the contemplated termination.