Introduction
When to fire an employee
What to say and do during the termination
How to make sure the termination is legal

Important Note
The information below is intended only to inform and not to be a substitute for the reader's seeking legal counsel. Any information given here should be examined by the reader's attorneys as to such information's applicability.

Introduction

No restaurateur enjoys firing an employee, especially when workers are in such high demand. Yet terminations are a fact of life for all business owners. This information will help you decide when it is appropriate to fire unproductive employees, what to say and do during the termination, and how to ensure the termination is legal. By using this material, you will be able to let poor performers go without demoralizing the rest of your staff or incurring a lawsuit.

When to fire an employee

The first step is to know when to fire an employee. You must know for sure that all other options have been taken before going ahead with the termination.

• Be sure you have given the employee all of the advantages that you promised in the hiring process. If you made no promises or promised no job security, then the decision to fire is much easier.
• Warn employees of unacceptable behavior and the likelihood that it will lead to termination if continued. Then document the warning on the employee's file and have the employee acknowledge the warning in writing.
• Never fire employees on their birthday, anniversary or before a holiday.
• Never fire employees on a Friday. The best day to fire them is early in the week, to give them sufficient time during the work week to seek other employment opportunities.
• Avoid terminating an employee on the spur of the moment. An angry attitude by you will provoke an angry response by the employee.

Once you have made the decision to fire an employee, you must choose your words and actions carefully in the termination meeting. The next step will help you get through this difficult time.

What to say and do during the termination

The key to proper employee termination is to be succinct and to have facts that justify the firing. Here is what to say and do:

• Give concrete examples of poor performance. Don't tell the employee, "It's just not working." Failure to give actual examples could be grounds for a wrongful-termination lawsuit.
• Tell the employee the effective date of the firing, whether it's today or two weeks later.
• Tell the employee the benefits, severance pay and unused vacation time that he or she is entitled to, if any.
• Limit the conversation to 10 minutes.
• If the individual being fired has access to sensitive information or computer files, terminate the person immediately and give him or her two-weeks'-notice pay. Consider changing passwords and codes when such an employee is terminated. Offer this employee outplacement counseling, if possible.
• Resist tears and begging from employees, or else word will spread that you can't fire anyone.
• Don't get into a shouting match with the employee.
• After the firing, call all remaining staff members together and explain the termination. Tell the employees how the firing will affect them, the responsibilities that will be shifted and when you plan to hire a replacement.
• If you hold an exit interview, focus on facts that led to the dismissal, not on the individual. Conduct the exit interview in private and at the close of business.
• If you suspect the employee might turn violent, arrange to have law-enforcement personnel on standby.
• Treat the employee courteously and do not publicly embarrass him or her.
• Don't sugarcoat the termination; your words can come back to haunt you.

Following these steps will make your job as manager easier. There are a few final steps to take to ensure that your firing is legal.

How to make sure the termination is legal

Botched firings can quickly escalate into a lawsuit against your restaurant. There are steps you can take to prevent an unlawful-termination lawsuit:

• Review your employee handbook and make sure it includes an employment-at-will statement, which spells out that the worker can quit at any time, or be fired at any time.
• Do not have statements in your handbook that say employees will be terminated only for good cause.
• Do not tell new hires that they will be employed for as long as they perform satisfactorily, because that is essentially a promise of lifetime employment.
• Establish clear position descriptions.
• Institute a system of evaluating job performance.
• Consider whether the employee is a member of a class or individuals protected on account of race, sex, religion, national origin, age or disability.
• Have a third party present at the termination who can serve as a witness, if necessary.

By taking these steps you can make this difficult act as painless as possible for you and your employee. In addition, following proper firing techniques could ward off a lawsuit and a decline in employee morale.

Last updated June 12, 2001.