Questions to Ask When Firing an Employee

1. What should I say to the employee when I fire him?

“Be prepared to face a range of emotions, from sadness to anger,” Rampenthal says, “No matter what, stick to your plan, your script, and be professional — which isn’t easy when someone cries or slams the table or threatens you with violence.”

Related: Should That Employee Be Fired? Ask These 5 Questions First. 

Most importantly, remember that everything you say can be held against you in a court of law. Be brief, calmly state that you’re dismissing the employee “for cause,” but don’t go into specifics because they could be misconstrued, he says. Many employers find it best to simply state that the company is “going in a different direction.”

2.Where and when should I fire the employee?

Whatever you do, don’t fire the employee over the phone. Afford him or her the respect of a face-to-face exit interview.

If you’re concerned for your personal safety when letting someone go, Rampenthal suggests that you have another person — preferably a fellow manager — present during the firing.

In terms of which day is best to let someone go, Rampenthal says he’s heard it all. “Some say always do it on a Friday, never on a Monday,” he says. “Others say never on a Friday, always on a Monday, and don’t do it after Thanksgiving or before the New Year. Truth is, there is no right day and time. It’s going to be uncomfortable no matter when you do it.”

3. Am I following state and federal employment law?

To be sure you don’t violate state and federal law when terminating someone, Rampenthal advises that you consult with your company’s human resources personnel or employment attorney ahead of the termination, or that you research applicable employment laws yourself, if needed. The U.S. Department of Labor thoroughly details federal rules and regulations regarding termination here. To find your state’s labor laws, you can search here.

Related: How to Let Go of Employees With Love and Dignity

As you likely know by now, federal law prohibits discrimination in employment based on certain protected classifications. Among them are race, ethnicity, gender, nationality, religion, age, veteran status, sexual orientation and disability.

If you’re firing someone on medical leave or an employee who recently revealed that she’s pregnant, you might be at an increased risk of being sued, says Rampenthal. You could also be at a higher risk for legal ramifications if you’re firing an employee who recently blew the whistle on a co-worker or a superior, or if you’re dealing with an employee who has made claims of harassment or discrimination.

4. What documentation of the cause of termination is needed?

Rampenthal says there’s technically no paperwork that’s required to let someone go. However, documenting consistent underperformance is key when firing someone for not fulfilling his or her job duties. Keep a thorough written record of warnings you’ve given the employee and of any improvement or probation plans provided. With consistent, written evidence of unsatisfactory performance in hand (or other offenses like absenteeism, misconduct or tardiness) you’ll increase your chances of mounting a winning defense should a suit be filed.

Related: How to Respectfully Terminate Employees

“The more paperwork you have, the better paper trail you have, the more evidence you’re going to have to show that you didn’t fire them for an improper purpose,” says Rampenthal. “A failure to document makes it easier for someone to say, ‘Well, it obviously wasn’t due to my performance. They fired me because I’m over 40 or because I’m an Asian-American or because I’m a female or because I’m a Protestant.’ If an employee can find another reason for termination and that reason is protected, then the lack of a paper trail is going to really look poorly on the employer.”

5. What should I do if I hear from the terminated employee again?

The best course of action is to be cordial and quick to refer the employee to your company’s attorney or human resources representatives. “Most of the time it’s sour grapes and doesn’t amount to much,” Rampenthal says, “but you can’t afford to buy a lawsuit because you failed to follow up on a claim of harassment or discrimination.”