Before the Termination Meeting; A 5-Point Legal Checklist for HR

Ending an employment relationship is sometimes necessary. It is also one of the moments when an otherwise routine HR decision can become a legal problem.

The biggest risks often arise before anyone enters the termination meeting. An incomplete record, a recent employee complaint, an unresolved accommodation request, inconsistent treatment, or a missed state-law requirement can change the risk surrounding a termination considerably.

Before scheduling the meeting, HR should consider five questions.

1. Does the documentation support the reason for termination?

Start with the stated reason for the decision.

If the termination is based on performance, does the record show the performance problem? Are there evaluations, warnings, coaching notes, attendance records, emails, or other documentation supporting what the company says occurred?

If the decision involves misconduct, is there a record showing what happened and how the company investigated it?

The goal is not to create a paper trail after the decision has already been made. HR should determine whether the existing record tells the same story the company intends to tell the employee.

A last-minute effort to reconstruct months of performance concerns can create more questions than it answers.

Before proceeding, ask: If someone unfamiliar with this employee reviewed the file six months from now, would the reason for termination make sense?

2. Has the employee recently engaged in protected activity?

Timing matters.

Before terminating an employee, HR should check whether the employee recently raised a discrimination or harassment concern, participated in an investigation, requested an accommodation, complained about pay or workplace practices, took protected leave, or engaged in some other activity protected by federal or state law.

Protected activity does not prevent an employer from terminating an employee for legitimate performance or misconduct reasons. When an adverse action closely follows protected activity, however, the employer should carefully review whether the decision and supporting record are independent of the complaint.

Before proceeding, ask: Is there anything in the employee's recent history that could make this termination look retaliatory?

3. Is there an unresolved leave, disability, or accommodation issue?

A performance problem does not automatically disappear because an employee has a medical condition. It can, however, create additional obligations that should be considered before termination.

An employee does not necessarily have to use specific legal language to request an accommodation. A request for a workplace change because of a medical condition may be enough to trigger the accommodation process.

HR should therefore check for open accommodation discussions, medical restrictions, requests for leave, intermittent leave, or recent information suggesting that a performance or attendance issue may be connected to a protected condition.

This does not mean that requesting an accommodation immunizes an employee from legitimate discipline.

Before proceeding, ask: Is there an accommodation, leave, or medical issue that has not been fully addressed?

4. Have similar employees been treated consistently?

Consistency is one of the simplest termination checks and one of the easiest to overlook.

Consider how the company has handled similar performance problems, attendance issues, policy violations, or misconduct involving other employees.

Different circumstances can justify different outcomes. The important question is whether there is a legitimate explanation for the difference.

For example, if one employee received progressive discipline for the same conduct that is now producing immediate termination for another employee, HR should understand why.

The same principle applies to whether company policies were followed.

Before proceeding, ask: How have we treated other employees in comparable circumstances, and can we explain any difference?

5. Have you checked the termination mechanics?

The legal analysis should not end when the decision is approved.

HR should review what happens when employment actually ends, including:

• final wages and any applicable timing requirements;

• treatment of accrued vacation or paid time off;

• commissions or bonuses that may remain payable;

• benefits and continuation notices;

• return of company property;

• confidentiality and other continuing obligations;

• any severance or release agreement;

• restrictive covenants, where applicable; and

• state-specific termination notices or documentation.

These requirements can vary significantly by state, which becomes especially important for employers with remote or multi-state workforces.

HR should also decide in advance who will conduct the meeting, what will be communicated, what documentation will be provided, and how access to company systems and property will be handled.

Before proceeding, ask: Are we legally and operationally prepared for what happens immediately after the conversation ends?

When HR Should Consider Calling Counsel

Not every termination requires outside counsel.

Some situations deserve another look before the meeting takes place.

Consider involving employment counsel when the employee has recently complained of discrimination or harassment; requested leave or an accommodation; raised wage, safety, compliance, or whistleblower concerns; participated in an investigation; has an employment agreement or complicated compensation arrangement; is part of a broader reduction in force; or presents another fact pattern where the legal risk is not straightforward.

The best time to identify those issues is usually before the termination meeting, not after a demand letter arrives.

The Five-Point Check

Before the meeting, confirm:

1. Documentation: Does the record support the reason?

2. Protected Activity: Is there a retaliation concern?

3. Leave & Accommodation: Is anything unresolved?

4. Consistency: Have similarly situated employees been treated similarly?

5. Mechanics: Are final pay, benefits, notices, agreements, and state requirements covered?

A termination meeting may last only a few minutes. The decisions leading to it deserve more time.

About Lanton, Lanton & Sosa Law PLLC

Lanton, Lanton & Sosa Law PLLC advises employers on employment law, workplace compliance, employee relations, investigations, policies, and other legal issues that arise across the employment lifecycle. The firm works with businesses and organizations on both day-to-day workforce matters and higher-risk employment decisions.

This publication is provided for general informational purposes only and does not constitute legal advice. Employment laws vary by jurisdiction and circumstances. Employers should consult counsel regarding specific employment decisions.