How to compliantly terminate an at-will employee

Wondering what are the primary considerations and risks you need to factor in when deciding to terminate a US employee and how to do it compliantly? Find out more.
Pieces of wood symbolizing employees with one piece outside the group

The decision to fire an employee in the US carries the risk of potential legal challenges.

You may be asking yourself, “isn’t the employment agreement at-will?” The answer to this question is yes, but it’s complicated!

Most states in the US are considered at-will employment states. This means the employee, or the employer may terminate their work relationship at any time without the need to provide prior notice or without the need for just cause. Even though at-will employers may terminate employees for any reason or no reason at all — you may not terminate an employee for a discriminatory reason. It is easier to defend against legal claims of discrimination when there are legitimate business reasons for the termination, such as:

  • Poor performance
  • Misconduct
  • Elimination of an employee’s position

 

For all terminations, employers should be able to articulate the reason for the termination and show clear documentation to support this decision. Whether performance or conduct issues occur during the probationary period or months later, the need to document these issues is ongoing.

Employers should address concerns about performance, attendance, or behavior early in the employment relationship. Overlooking problems may cause employees to believe their performance is acceptable, thus making later disciplinary action seem unfair, discriminatory, or retaliatory*.

Before second-guessing your hiring decisions, employers should consider whether new hires have been given the appropriate training and resources to be successful as well as the opportunity to correct mistakes. The time and cost to hire someone new often exceed the effort to help an employee improve their performance.

The risks of terminating an employee

Some employees feel wronged when they are terminated from their job, especially if it was done without cause. However, there are instances where an employee could be “wrongfully terminated”, and this carries a significant risk to an employer.

Find out more about what can be considered a wrongful termination. 

How does Foothold America assist?

Once you notify us of a potential termination, the Foothold America HR team solicits answers to the following questions to determine if the employee is ready for termination.

  • Reason for termination (misconduct or performance)
  • Did the employee receive direct feedback about their performance/misconduct?
  • Did the employee communicate a reason for their poor performance or misconduct?
  • Was the feedback documented and shared with the employee?
  • What support, if any, did the company provide to help the employee (proper training)?

 

If the termination is based on poor performance and there has not been consistent feedback given to the employee, a Performance Improvement Plan (PIP) is strongly recommended. Without proper documentation, the employee has an opportunity to claim wrongful termination.

Proceeding with the termination

Once you have consulted with the Foothold America HR team and the decision to terminate the employee has been agreed upon, we support every aspect of the process as follows:

  • Guide how to proceed with the termination.
  • Upon request, coordinate a joint call with you and the employee to discuss the termination.
  • Coordinate and communicate final pay details to you and the employee.
  • Issue an official termination letter to the employee as needed.
  • When applicable, communicate the transition of benefits to COBRA.
  • Arrange the collection of company property (laptop, monitors, etc.).

 

As your partner, Foothold America is always available to provide the adequate steps needed before termination. The ramifications of an involuntary termination are too serious to do otherwise.

* Did you know Retaliation was the most frequent alleged claim in charges filed with the Equal Employment Opportunity Commission in the fiscal year 2020? 

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