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January 17, 2022

Tips to Prevent Wrongful Termination Claims

By Adam Kemper.

What leads a company to discharge its workers? How does a company discharge its workers? What are the company termination policies and procedures, and are they being followed?

The answers to these questions are often the difference makers in whether an employee (i) pursues a “wrongful termination” or other workplace type claim, (ii) triggers an audit, or (iii) writes a negative review online.

Sooner or later, every business will have to go through the process of terminating an employee. The process can be stressful, and if not handled properly, employers can face legal action by their employees.

I have counseled companies of all sizes, both public and private, in various industries on workplace and human resources issues, including interviewing, hiring, employee discipline and discharge, workplace discrimination, harassment, retaliation, and unemployment claims.

I do not come into too many scenarios where managers or decision-makers say inappropriate things when relaying the message of termination (e.g., “we have decided to fire you because you are ____”), but often it is the process of termination and the failure to take certain things into consideration at the time of or before the termination itself which results in claims.

Over the years, I have observed several areas that have been proven to result in fewer (if any) employment claims, including the following:

  1. Clear and written performance expectations for the employee.
  1. Sufficient support by the employer to meet those expectations. 
  1. Written warning(s) before the discharge specifically detailing deficiencies and reasonable goals to improve.
  1. Empathy used in delivering the message of discharge. 
  1. Consistent action in disciplining and discharging its workers for the same reasons.
  1. Communication with employment counsel before proceeding with termination.
  1. Conducting a post-exit interview.
  1. Considering the pros and cons of offering severance/separation agreement/general release and doing so when appropriate.
  1. Not contesting truthful applications for unemployment benefits.
  1. Paying employees on time and in full.

Defending a wrongful termination claim can be expensive and stressful. These tips can help employers mitigate their chances of being sued. Certainly, there is more to consider, but the point is, if you have decision-makers not thinking through at least some of these items, they are putting the company at risk for a workplace lawsuit, audit, investigation, or even a negative review on Indeed.com or CareerBuilder (which can affect future recruitment and retention).

Keep in mind that having termination policies and procedures in place is not enough. They must be followed and applied consistently. Policies and procedures should also be continuously reviewed and updated to meet the evolving needs of the company and workplace environment and provide adequate legal protection from a termination gone wrong.

If you have concerns about terminating an employee or need assistance preparing an employee handbook or ensuring your company policies comply with all applicable state and federal laws, contact the Labor & Employment Practice Group at Kelley Kronenberg for an initial consultation. We are committed to providing client-centered and cost-effective strategies and solutions so you can spend more time running your business.

The Labor & Employment attorneys at Kelley Kronenberg specialize in HR Consulting and have extensive experience in all areas of labor & employment law. Contact us to learn more about employee engagement and how it can benefit your business.

Click here to watch Kelley Kronenberg’s webinar, “How to Improve Employee Engagement and the Employee Experience“, moderated by Adam Kemper.


Adam Kemper is a Partner and Business Unit Leader at Kelley Kronenberg, focusing his practice on Labor & Employment Law.

Contact Adam Kemper at:
Phone: (800) 431-0574
Email: akemper@kklaw.com

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.