The 10 Questions You Must Ask Before Firing
Faced with a firing, managers are typically upset and uncomfortable. They want to just "get it
over with." Stop right there. Slow them down, and ask these 10 questions first. Otherwise, you're
likely headed for an expensive lawsuit.

Here are the 10 questions we recommend you ask before any termination. If your answer to any
of these questions rings a worrisome note, review the situation carefully before making a
termination decision.

1. Have you followed your own policies?
Most organizations have a discipline policy that covers termination. Check your policy to be sure
that you have followed it, especially if your policy calls for “progressive discipline” or suggests
that employees are fired only for cause.

Policies generally reserve the right to skip steps in the progressive discipline system and fire
immediately for certain offenses such as stealing or violence. However, you should exercise this
right with caution.

2. Is there a contract or other guarantee?
If the employee in question has a written employment contract, you will probably be bound by
its terms. Even in the absence of written contracts, many courts have found that certain
documents, such as employee handbooks or offer letters, can create implied employment
contracts. For example, your policy or handbook might inadvertently:

     “Guarantee” a job as long as work is satisfactory.
     Require arbitration or other alternate dispute resolution approaches.
     Mandate progressive discipline.

3. Is there a union agreement?
If the employee in question is covered by a union contract, you must determine whether this
termination would be contrary to union contract provisions.
Furthermore, if the employee has been involved in union organizing, you must weigh whether
the offense for which the employee is to be terminated could be considered “concerted activity”
or whether the termination could be considered retaliation for union activity.

4. Have you been consistent?
Consistency is an important part of fair treatment. If you have consistently terminated others for
the same offense for which you want to terminate this employee, you are probably going to be all
right. If, however, you have never terminated a white male for a certain offense, and now you
intend to terminate a black male for that offense, you could be on thin ice.

5. Could this firing be viewed as discriminatory?
Could the employee claim that he or she was fired not for the reason the organization claims, but
because of discrimination? (“You fired me because I am [old, black, Muslim, gay, disabled, etc.],
not because I broke a rule.”)

6. Could this firing be viewed as retaliatory?
Could the employee claim that he or she was fired for performing a protected activity? For
example, making a complaint to a government agency, making accusations of sexual harassment,
or making a workers’ compensation claim? If so, look at the situation carefully.

7. Is the employee pregnant?
In general, treat pregnant women the same way you treat any employee with a disability. You
may not fire a woman because she is pregnant.

8. Do you have a well-documented business reason for the termination?
Generally, if you can produce a well-documented business reason for your termination—for
example, poor performance—you are more likely to avoid—or win—any lawsuit.

9. Do you have supporting documentation?
Imagine yourself on the witness stand explaining that a termination was due to poor
performance. Then the defense attorney produces a string of performance appraisals—signed by
you—that say “satisfactory” or “good.” Case closed. No matter what you say now, you're a liar.
You were lying then or you are lying now.
Sometimes it doesn’t even take a formal document to show acceptable performance. Just the fact
that you treated the employee like other good-performing employees—i.e., gave raises and
bonuses--is enough to convince a jury that you are fabricating the poor performance reasoning.

10. Have you been fair?
As many organizations have found out to their dismay, being technically correct in a legal sense
is often not enough. Juries often react more on the basis of fairness than of law. And, by the way,
so do the rest of your employees. Therefore, it is necessary to evaluate both the actual legal
requirements and the softer issue of fairness before terminating an employee.

Reprinted with permission from HR Daily Advisor. Copyright 2009 Business and Legal Reports.
P•A•S Associates has expertise in human resources and other areas involving employment issues. P•A•S
Associates, in providing this tip, does not represent that it is acting as an attorney or that it is giving any form of
legal advice or legal opinion. P•A•S Associates recommends that before making any decision pertaining to
human resource issues or employment issues, including the utilization of information contained on this website,
the advice of legal counsel to determine the legal ramifications of the use of any such information be obtained.
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