D+AS MAGAZINE

LEGAL — How to Fire an Employee

© 2001 Door & Access Systems
Publish Date: Spring 2001
Author: Phillip M. Schreiber
Page 40


Legal Tips

How to Fire an Employee

Phillip M. Schreiber

The cards are stacked against the employer in an employment lawsuit that is tried before a jury. (See winter 2000-2001 edition for Part I of this legal tip.) The law places the burden of proof on the employee to show that the termination was for an unlawful reason. However, the reality is that juror preconceptions and misconceptions require you to demonstrate that you, the employer, were justified in terminating the employee.

How to Be Fair

Being able to establish that you provided the employee with "due process" prior to the discharge will go a long way toward convincing a jury that the discharge was justified. Although the due process employment practices suggested below are not mandated by law, jurors expect employers to follow them.

Due process and respect may be thought of as industrial fairness. Fairness means that the employee understands what is expected, is told when and why performance is not up to snuff, is provided an opportunity to improve, is told the consequences of failure, and is disciplined or discharged only if, after all of the above, performance still does not improve.

Follow These Steps

The following steps should be followed before discharging an employee for unsatisfactory job performance:
  1. Inform the employee of your expectations concerning job performance. You should communicate your expectations in writing during the employee’s orientation, in any written job descriptions for the employee’s position, in formal and informal performance evaluations, in work rules, and during meetings to discuss informal and formal disciplinary actions being taken against the employee.

  2. nform the employee of the nature of any performance deficiencies, specifically, in detail, and in objective terms.

  3. Inform the employee of what is necessary to raise his or her performance to the expected performance levels, specifically, in detail, and in objective terms.

  4. Give the employee an opportunity to improve by providing a reasonable and specific deadline by which he or she must be performing at the expected levels, and follow-up with the employee at the specified time to determine if performance has improved satisfactorily.

  5. Provide the employee with the training and support necessary to give the employee the best opportunity to succeed.

  6. Inform the employee, in advance, of the potential disciplinary consequences if his or her performance does not improve to acceptable levels by the established deadline.

  7. Be able to demonstrate that the expected performance levels were reasonable.

  8. Be able to show that the cumulative instances of unsatisfactory performance justified the degree of discipline imposed.

If you properly conduct performance appraisals, reinforce the formal evaluations with regular, candid feedback about the employee’s performance, and follow the steps outlined above, then the discharge should come as no surprise to the employee. It is the element of surprise, of unfairness, that often motivates employees to file lawsuits in the first place. Employees who believe that they were treated with respect are less likely to sue.

In Part III, attorney Schreiber will show how you can demonstrate that you had "just cause" to fire the employee and how you can prove your case to a jury.


Phillip M. Schreiber (schreiber@mbc.com, 312-715-5784) is a partner in the labor and employee relations department at Chicago-based McBride Baker & Coles. The department provides counseling and litigation services to employers in all areas of labor and employment law.

This article is provided solely for informational purposes and does not constitute legal advice. If you need specific legal advice, consult legal counsel.