One of this blog’s most popular posts has been 24 Questions to Ask Before Terminating an Employee. Here’s another question to ask: Why now?

One way that employees and their lawyers attack the employer’s justification for the termination is to question the timing. Why wasn’t the decision made closer in time to the event the employer complains about? Why wasn’t it made after an earlier, more egregious occurrence?

Copyright: sifotography / 123RF Stock Photo
Copyright: sifotography / 123RF Stock Photo

If the termination gets challenged, the employee and his or her lawyer will have months to come up with holes in the employer’s rationale for terminating. So it’s important for employers and their counsel to give serious thought to how their justification will withstand that scrutiny. Therefore, add “Why now?” to my earlier list of questions to ask before terminating.

Of all the employment decisions employers make, none get litigated more often than termination decisions. To protect your company, review these questions before any termination.

  1. Does the employee have a contract of employment? If so, what does it say about grounds for termination?
  2. Has the employee acknowledged in writing that employment is terminable at will?
  3. Does the employer have any policies requiring it to take specific steps before termination? If so, has it taken those steps?
  4. Has the employee recently engaged in protected activity, such as complaining about discrimination, harassment, or some unethical or unlawful activity?
  5. Has the employee asked for an accommodation for a disability? Is there reason to believe that the reason for termination may be attributable to a disability?
  6. What is the reason for the termination?
  7. How strong is the evidence to support that reason?
  8. Has the issue been addressed with the employee? If so, is that documented?
  9. How long has the employee worked for the company?
  10. Does the employer plan to refill the position? If not, how will the former employee’s duties be covered?
  11. Is the employee in any protected category that is underrepresented within the organization?
  12. Has the employer considered less severe actions (warning, suspension, a cut in pay)?
  13. Has the employer dealt with similar issues in the past? If so, is this issue being handled consistently with the prior ones? If not, what’s the basis for treating this one differently?
  14. If the reason for termination is performance related, has the employee received performance evaluations that identify the problem?
  15. Has the employee received any awards or positive recognition?
  16. If the reason for termination is based on misconduct, has the employee been given a chance to tell his or her side of the story? Has the issue been investigated?

    Copyright: omnimages / 123RF Stock Photo
    Copyright: omnimages / 123RF Stock Photo
  17. Is there reason to believe that the employee has not received all the compensation and meal or rest breaks that applicable law requires?
  18. Does the person hold any other positions with the organization (such as being a corporate officer or director or trustee of a benefit plan)?
  19. If the employee challenges the decision, what grounds does the company think the employee will raise?
  20. Is there any particular reason why the decision may be perceived as unfair?
  21. Are there steps the company needs to take before termination to preserve client or customer relationships?
  22. Are there steps the company needs to take before termination to protect its information systems or confidential information?
  23. Is there any pending or threatened litigation that will require the employee’s involvement?
  24. Is there reason to be concerned that this employee may react violently?

The answers to these questions will help you determine if termination is appropriate and if you should take further steps, such as consulting experienced counsel, to protect your company.

Here’s an update I did on this post’s 1st birthday.