How to Fire an Employee the Right Way

With the rise in mass layoffs by tech and retail giants starting in 2022, offboarding has become an unfortunate yet necessary point of interest for many HR professionals and hiring managers alike. Involuntary separations are even more likely—the Bureau of Labor Statistics (BLS) estimates 1.6 million people were fired from their jobs in March 2024 alone.

However, for the employee, getting fired is usually shrouded in ambiguity, and in the worst cases, it’s seen as shameful and devastating. After all, everyone involved is a human being with emotions and a life beyond the workplace, and something as significant as losing your livelihood is never taken lightly.

As commonplace as involuntary separations seem to be, each circumstance is unique and needs to be handled as such to ensure that the termination is ethical, compassionate, and legally sound in order to protect the company from lawsuits.

In our guide, we’ll explain how to maintain professionalism and legal compliance throughout the offboarding process while being as sensitive and understanding as possible towards the employee.

BambooHR^® also offers offboarding software solutions to help you simplify and automate this complicated process.

3 Common Reasons for Termination

How Does At-Will Employment Affect Employee Terminations?

“At-will” employment means a company can terminate an employee or an employee can quit with or without cause or notice, unless there’s an employment contract specifying otherwise. All states (with the exception of Montana) follow some version of at-will employment laws.

However, there are many exceptions to at-will employment and situations that present a significant risk of legal action.

With Cause

There are many different reasons why you may be required to fire an employee. For example:

• Drug or alcohol use during work
• Poor performance
• Damaging company property
• Theft or misuse of company property
• Sexual harassment
• Poor attendance
• Safety violations

Without Cause: Can You Fire Someone for No Reason?

Layoffs are a common form of involuntary termination that’s considered without cause. And yes, an employer may fire an employee for any reason and without notice based on at-will employment laws, but there are many exceptions that are considered wrongful termination (which may also be referred to as "constructive discharge").

Wrongful termination is illegal and could result in a costly lawsuit. Here are examples of unlawful terminations:

• Discrimination
• Labor law violations
• Employment contract violations
• Retaliation to whistleblowing (e.g., reporting illegal activity such as an unsafe workplace or harassment)
• Because an employee exercised their legal rights (e.g., taking leave, wages, or overtime)

We recommend consulting your legal counsel if you have any hesitations about whether or not you can rightfully terminate an employee.

How to Fire Someone the Right Way

With the exception of serious crimes, such as acts of violence at work or theft, which would warrant immediate termination, there are certain steps your company should take before firing an employee.

Following these guidelines will help you cover your bases as an employer and also give your employees a fair reason for their dismissal from the company.

The most important thing you can do is provide thorough documentation, which leads us to the first step.

1. Conduct Regular Performance Reviews

You can use goals and performance objectives to measure your people’s successes or failures to meet job expectations. If you aren't already evaluating your employees on a regular basis, check out our Performance Review Checklist on how to get started.

Job expectations should be written down, and discussed and agreed upon by both the employee and employer. This way, a termination won’t come as a surprise when the employee repeatedly fails to meet the performance standards that they agreed to.

Documenting how the employee fails to meet job requirements or violates company policies builds a stronger case for your company if you’re faced with resistance from the employee. Carefully taking notes, including time, date and details, and how each infraction was handled, will prove to be a valuable source of evidence if needed.

Regular performance conversations and one-on-one meetings also help employees. First, you’re giving them a chance to meet expectations and keep their position. At the very least, they’ll have time to prepare and find employment elsewhere before getting fired.

2. Include a Witness

Despite taking the utmost care during a notice of termination meeting, it’s still possible that a former employee will disagree with their reason for termination and will take legal action against the company if they feel they were treated unfairly and wrongfully terminated.

The Society for Human Resources Management (SHRM) strongly advises having at least one other employee present in the room during the meeting for legal and safety reasons. It also provides someone who can support your side of the story if it comes down to recounting the meeting.

It’s a good idea for an HR representative to act as the witness. As an HR pro, you have the knowledge and experience necessary to guide the process in accordance with company policies and labor laws.

If being there isn't an option, you may want another manager or even a senior executive to act as a witness. Remember, witnesses aren’t there to explain why the employee is being terminated; they're just there to provide support.

3. Follow Company Processes

Part of firing someone the right way is to be sure that you’re adhering to company processes. Make sure you’re training managers on your company’s employee handbook. Your handbook should include the specific reasons for termination and detailed disciplinary actions.

If you have to fire an employee remotely, be sure to have specific processes in place tailored for remote workers. This may include additional steps, such as having the employee mail back all company property and signing documents electronically.

4. Make Sure You're Compliant

We mentioned earlier that there are exceptions to at-will employment, so it’s essential that any organization terminating an employee is fully aware of what constitutes a legal reason for dismissal at the federal, state, and local levels. In the US, the main federal regulations that can affect terminations are Equal Opportunity Employment Laws and the Family and Medical Leave Act (FMLA).

Equal Opportunity Employment Laws

It should go without saying that you can’t use age, gender, religion, sexual orientation, gender (or gender identity or expression), disability, or any other status protected by federal equal employment opportunity laws as a reason for termination.

But it’s also worth noting that you can’t fire an employee for a reason that targets or adversely impacts people who fall into one of those protected classes. For example, it's illegal to fire someone for not working during a time that also coincides with their observed religious holiday, as this would be considered religious discrimination.

The Family and Medical Leave Act (FMLA)

Another important labor law is the FMLA. It’s legal to fire an employee during or immediately after they go on FMLA leave—so long as the reason for termination is unrelated to their use of FMLA. In fact, the third most common FMLA violation from employers is firing an employee related to FMLA.

But this is a tricky area. Firing someone in this situation can lead to legal complications if you don’t have enough evidence to prove that your reason for termination is completely unrelated to the employee’s decision to go on medical leave.

5. Prepare for the Conversation

Being prepared for the conversation will make a difficult situation easier for all parties involved. Bring all documentation regarding the employee’s conduct and performance that led to their termination. Include specific incidents, warnings, and disciplinary actions taken. Keeping factual information helps prove that the employee is being terminated for objective factors and reduces the risk of legal repercussions.

Additionally, make sure to print (or prepare electronically) and organize any additional documentation that requires the employee’s signature, such as a letter of termination. You’ll also need to provide the employee information about unemployment, health insurance policies, and returning company property.

If you need to revoke their access to data, facilities, or equipment, make sure you can do that without any delay. That means notifying IT and managers ahead of time that they’ll need to collect the employee’s gear and turn off account permissions.

And if you need to escort the employee off-campus, be sure to have security on call.

6. Choose a Date, Time, and Location

The timing of the termination conversation can make a difference between a smooth, respectful transition and a confusing, unpleasant situation.

Ultimately, the best date and time to fire an employee will depend on the unique circumstances of the situation, including the individual's schedule, company policies, and organizational culture.

Here are some best practices to keep in mind:

• Picking the Ideal Day: Schedule terminations early in the week to allow management and your HR team to address any questions, conduct an exit interview, and follow through with all offboarding processes. This also gives the employee time to process the change and to have access to necessary company resources for an easier transition.
• Scheduling the Right Time: Choose a time of day when you can minimize disruptions, and be sure to look through your employee’s individual calendar to avoid any time conflicts.
• Choosing a Discreet Location: Select a location that provides privacy and ensures confidentiality. E.g., find a quiet conference room or office away from colleagues to avoid unwanted attention and embarrassment.
• Timing the Event Invitation: Send the invite close to the time of the meeting, such as the morning of. Doing so will prevent unnecessary anxiety for the employee who may suspect that they are getting fired. It’ll also protect the company should the employee have enough time to retaliate before they’re let go.

If you decide to notify the employee about the meeting time beforehand, avoid letting them know too far in advance. Send a calendar invite, and keep the title of the meeting simple.

7. Be Clear and Direct During the Meeting

When having a difficult conversation like firing an employee, we strongly suggest using a script or notes with talking points. Doing so will keep the conversation on track and ensure you don’t miss important details.

Begin the conversation by clearly stating the purpose of the meeting, and use clear and direct language to communicate that the employee is being terminated from their position. Keep the meeting brief and avoid going into too much detail, so you don't say anything you may regret.

Here are some talking points you should cover:

• Provide reasons. Don’t make it personal, and don't go into too much detail. Stick to objective reasons that can be supported with documentation, such as performance evaluations or layoffs.
• Express empathy. Use a calm and compassionate tone. Acknowledge the difficulty of the situation and be attentive to their emotions and reactions.
• Listen. Allow the employee to express their thoughts and feelings, but make sure to keep the conversation on topic. It’s possible to actively listen while keeping the meeting as short and as direct as possible.
• Offer assistance. Depending on the nature of the separation, you may provide information to the employee about any support services available to them, such as severance packages, outplacement assistance, or access to counseling resources. Answer any questions they may have regarding benefits or next steps.
• Discuss logistics. Outline the logistical details of the termination, such as the last day of employment, return of company property, and signing paperwork.

Delivering difficult news in a respectful and empathetic manner can help the employee remain calm and mitigate the emotional impact. If applicable, end the conversation by thanking the employee for their efforts and contributions during their time at the company.

By parting ways with everyone’s dignity intact, the organization upholds a sense of fairness and integrity. Additionally, maintaining a good reputation as a company that treats its employees fairly is important for employee morale and attracting top talent.

8. Follow Through with Offboarding

After the termination conversation, HR and management need to follow through with important tasks, like exit interviews and signing termination documents. Following an offboarding checklist ensures that all necessary steps are taken for a smooth transition process.

Offboarding tasks include an exit interview and having the employee sign a termination letter as acknowledgment of their last day, any unused PTO days, benefits and severance packages. This is the time to collect any company-owned property in the employee’s possession and revoking access to company systems and accounts.

Respecting the employee’s feelings and experiences as real, showing you understand their termination isn’t inconsequential, and offering genuine thanks can help employees make an easier transition out.

You’ll also likely come away from the situation feeling better about what you had to do, which is essential for your own wellbeing, too.