How to be Prepared: When an Employee’s Misconduct Leads to Termination

The National Law Review recently published an article regarding Employee Misconduct written by Preston Clark Worley of McBrayer, McGinnis, Leslie and Kirkland, PLLC:

Terminating an employee can be one of the most difficult tasks for a business owner or human resource manager. It is however the responsibility of both positions and a necessary part of doing business. Termination is difficult under most circumstances because of the personal information an employer may know about an employee. After an employee becomes part of the workforce supervisors often discover personal information, such as an employee’s financial hardships or family difficulties, which makes difficult decisions uncomfortable.

Besides the emotional stress of terminating an employee, there are also legal concerns. Every employer should have steps in place that protect the company against wrongful termination or discrimination lawsuits.

The most important factor when terminating an employee is documentation. You cannot document enough. Employee documentation should describe in detail, all actions and behaviors that lead to all disciplinary actions and ultimately the termination of the employee. Every incident report and reprimand should be documented, clearly outlining the actions taken. (To read more about documentation of misconduct visit

Of course, we more easily think to document the incidents and reprimands of an employee, but it is also important for a company to document all trainings, meetings and attempts to assist or improve the employee’s behaviors.  It is best to review with the employee all performance expectations and conduct policies, before the employee starts to work and again after any incident of misconduct.  Each time and employee is reminded of the expectations and conduct policies; the communications should be documented by the employer and signed by the employee.

If this practice is followed, prior to termination, an employee will have received several reprimands and incident reports that relate to poor performance or policy violations.  Even though you have documented this all in the employee’s file, and they have read and signed each document, one more step should solidify the documentation necessary to ensure a proper termination of a difficult employee.  Draft a final warning letter, outlining each time the employee has had a problem, and the steps the company has taken to resolve the issue.  This letter is similar to a termination letter, in that it spells out exactly what repercussions the employee will suffer (i.e.; termination) if the behavior is not corrected.

If the company has a well-documented employee file, the likelihood of encountering trouble from terminating an employee are greatly minimized.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

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