Employee Termination: Legal Best Practices

Before the Termination

Documentation

Build a clear record that supports the termination decision:

• Performance reviews showing deficiencies
• Written warnings with specific examples
• Records of coaching conversations and improvement plans
• Evidence of policy violations
• Attendance records if applicable

Review the Decision

Before proceeding, verify:

• The decision is consistent with how similar situations have been handled
• The employee is not on FMLA leave or has not recently filed a complaint
• There are no pending workers' compensation claims
• The termination does not appear to be based on a protected characteristic
• Any contractual obligations or agreements have been considered

Prepare the Logistics

• Choose a private location
• Schedule the meeting for early in the week if possible
• Have a witness present (typically HR)
• Prepare final pay in compliance with state law
• Prepare COBRA notices and benefit continuation information
• Arrange for return of company property
• Plan for IT access revocation

During the Meeting

Keep the meeting brief and professional:

1. State the purpose clearly at the beginning
2. Explain the reason for termination concisely
3. Do not debate or argue - the decision has been made
4. Provide information about final pay, benefits, and next steps
5. Treat the employee with respect and dignity
6. Allow the employee to ask questions about logistics

After the Termination

• Process final pay according to state law requirements (some states require immediate payment)
• Send COBRA notice within required timeframes
• File any required state separation reports
• Update internal systems and records
• Communicate the departure to the team appropriately
• Conduct an exit review to identify any patterns or concerns

Special Considerations

At-Will Employment

Even in at-will states, terminations can give rise to claims of discrimination, retaliation, or breach of implied contract. Documentation and consistency remain essential.

Severance Agreements

If offering severance, consider including:

• A release of claims
• Non-disparagement provisions
• Confidentiality terms
• Adequate consideration period (21 days for employees 40+, per OWBPA)