Ending an employment relationship is sometimes necessary. It's also one of the situations where a decision that seems straightforward can become a significant legal and financial problem for an employer.
The biggest risks often arise before anyone enters the termination meeting. An incomplete employee file, a recent workplace complaint, an unresolved accommodation request or inconsistent disciplinary decisions can change the legal considerations surrounding a termination.
For HR leaders, identifying these issues early can help avoid disputes, reduce unnecessary costs and give management a clearer understanding of its options.
Before scheduling a termination meeting, consider these 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 existing record support it? Are there performance evaluations, written warnings, coaching notes, attendance records or emails documenting the concerns?
If the decision involves misconduct, is there a record explaining what happened and how the company investigated the situation?
The goal is not to create documentation after the termination decision has already been made. HR should determine whether the existing record supports the reason the company intends to give the employee.
A last-minute effort to document months of previously unrecorded performance problems may 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 review whether the employee recently complained about discrimination or harassment, participated in an investigation, requested an accommodation, raised a wage concern, took protected leave or engaged in another legally protected activity.
Protected activity does not prevent an employer from terminating an employee for legitimate performance or misconduct reasons. However, when termination closely follows protected activity, the employer should carefully examine whether the decision is supported by legitimate reasons independent of that activity.
This is one of the situations where involving employment counsel before communicating the termination decision can be particularly valuable.
Counsel can review the relevant circumstances, assess potential retaliation concerns and help HR determine whether additional investigation or documentation is needed.
Before proceeding, ask: Is there anything in the employee's recent history that could raise concerns about retaliation?
3. Is There an Unresolved Leave, Disability or Accommodation Issue?
A performance problem does not automatically disappear because an employee has a medical condition. However, an employee's medical circumstances may create legal obligations that should be considered before termination.
Employees do not necessarily need to use specific legal language to request an accommodation. A request for a workplace adjustment because of a medical condition may be sufficient to trigger an employer's accommodation obligations.
HR should review any open accommodation discussions, medical restrictions, leave requests, intermittent leave or recent information suggesting that an attendance or performance issue may be related to a protected condition.
This does not mean that requesting an accommodation protects an employee from otherwise legitimate discipline.
However, terminating an employee without addressing an outstanding accommodation or protected-leave issue can create unnecessary legal exposure.
Employment counsel can help evaluate the employer's obligations and determine whether additional steps are necessary before proceeding.
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 the company has a legitimate explanation for those differences.
For example, if one employee received progressive discipline for conduct that is now producing immediate termination for another employee, HR should understand what distinguishes the two situations.
The same principle applies to following company policies and established disciplinary procedures.
Before finalizing the decision, HR should review comparable situations and document any legitimate reasons for different treatment.
Before proceeding, ask: How have we treated employees in comparable circumstances, and can we explain any differences?
5. Have You Checked the Termination Requirements?
The legal analysis should not end when the decision is approved.
HR should also review what happens when employment actually ends, including:
Final wages and applicable payment deadlines.
Accrued vacation or paid time off.
Commissions and bonuses that may remain payable.
Benefits and continuation notices.
Return of company property.
Confidentiality and other continuing obligations.
Severance and release agreements.
Restrictive covenants, where applicable.
State-specific termination notices and documentation.
These requirements can vary considerably by state, creating additional complications for employers with remote employees or multistate operations.
For example, an employer with employees working in several states may face different final-pay deadlines and obligations regarding accrued vacation.
HR should also decide who will conduct the meeting, what will be communicated, which documents will be provided and how access to company systems and property will be handled.
For employers operating across multiple jurisdictions, employment counsel can help review applicable requirements and prepare the necessary separation documentation.
Before proceeding, ask: Are we legally and operationally prepared for everything that needs to happen immediately after the termination meeting?
When HR Should Consider Calling Counsel
Not every termination requires outside counsel. However, certain circumstances deserve additional review before the employer acts.
These include situations where an employee has recently made a discrimination or harassment complaint, requested leave or an accommodation, raised wage or whistleblower concerns, participated in an investigation or has a complicated compensation arrangement.
Legal review may also be appropriate when the company is considering a reduction in force, terminating an executive or managing employees across several states.
Employment counsel can help HR evaluate the decision, review supporting documentation, identify applicable legal requirements and prepare appropriate separation agreements.
The objective is to address potential issues while the company still has options, rather than waiting until a termination results in an agency complaint or demand letter.
The Five-Point Check
Before the meeting, confirm:
Documentation: Does the record support the reason for termination?
Protected activity: Is there a potential retaliation concern?
Leave and accommodation: Is anything unresolved?
Consistency: Have employees in comparable circumstances been treated consistently?
Termination requirements: Have final pay, benefits, notices, agreements and applicable state requirements been addressed?
A termination meeting may last only a few minutes. The decisions leading to it deserve considerably more attention.
How Lanton, Lanton & Sosa Law Can Help
Lanton, Lanton & Sosa Law works with employers and HR leaders on employment decisions, workplace compliance and the legal issues that arise throughout the employment relationship.
Our employment law practice assists employers with employee discipline and termination, workplace investigations, leave and accommodation requests, employment agreements, separation arrangements and multistate workforce compliance.
We work with HR leaders and management to evaluate difficult employment decisions, identify potential legal risks and develop practical approaches that account for both legal obligations and business needs.
If your organization is considering a difficult termination or facing a complicated employee-relations matter, contact our firm to discuss how we can assist before the decision is finalized.
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.
Casandra Lanton, Esq. Lanton, Lanton & Sosa Law PLLC