Proper Steps Before an Employee Is Terminated

This is the second in a four-part series from Oberman Law Firm on employee terminations at businesses. Part 1 covered the liability risks a mishandled termination can create. This article covers the process that prevents those risks from becoming claims — starting with the single most important document a business can have in place: a detailed, thoroughly prepared employee manual.

KEY TAKEAWAYS

• A current, detailed employee handbook is the foundation of a defensible termination — and must be applied consistently to be worth anything.
• Contemporaneous, factual documentation is the most persuasive evidence in any termination dispute.
• Progressive discipline only protects the business if it is followed the same way for every employee.
• Complaints and incidents should be investigated before a termination decision is finalized.
• A final legal review before delivering the news catches problems while they are still fixable.

Courts, juries, and government agencies tend to look at one central question when a termination is challenged: did the business follow its own rules, consistently, and can it prove it? The steps below build the record that answers that question.

Maintain a Detailed, Thoroughly Prepared Employee Manual

A current, well-drafted employee handbook is the foundation of a defensible termination. The handbook should go beyond a generic template and address the realities of your day-to-day operations. At minimum, it should include:An at-will employment statement — clearly defining the business's at-will relationship with employees, while avoiding language that could be read as a promise of continued employment.

• Workplace conduct standards — attendance, dress code, customer and client interaction, confidentiality, and acceptable use of company equipment and technology.
• EEO and anti-harassment policy — a clear anti-harassment and anti-discrimination policy with a defined, confidential complaint procedure and an explicit anti-retaliation commitment.
• A progressive discipline framework — a step-by-step outline of verbal warning, written warning, performance improvement plan, and final warning — while preserving the business's right to skip steps for serious misconduct.
• Wage and hour policies — timekeeping, overtime, meal and rest breaks, and how time is recorded for hourly and non-exempt employees.
• Leave policies — summarizing FMLA, ADA accommodation requests, jury duty, and any applicable state or local leave rights.
• Safety and regulatory compliance — general workplace safety expectations and any licensing, recordkeeping, or regulatory compliance obligations specific to your industry.
• A separation and offboarding policy — outlining final pay timing, return of company property, and continuation of benefits.

The manual should be reviewed at least annually, acknowledged in writing (and re-acknowledged after material updates) by every employee, and applied the same way to every employee in a similar situation. A handbook that exists but is not followed is often worse than no handbook at all, because it becomes evidence of a promise the business broke.

Document Performance and Conduct Issues as They Happen

Contemporaneous documentation — written at the time of the issue, not reconstructed afterward — is the single most persuasive evidence in a termination dispute. Documentation should be factual and specific (dates, times, what was observed, who was involved) rather than conclusory, and it should be signed or acknowledged by the employee where possible.

Apply Progressive Discipline Consistently

Follow the handbook's own disciplinary steps, and apply them the same way across similarly situated employees. Inconsistent enforcement — disciplining one employee for conduct that was overlooked in a colleague — is one of the most common facts plaintiffs' attorneys look for.

Investigate Before You Act

Where termination follows a specific incident or complaint, conduct a prompt, impartial investigation, interview relevant witnesses, and document the findings before making a final decision.

Review the Decision Before It's Final

Before delivering the news, confirm the stated reason for termination is well-documented, consistent with how similar situations have been handled, and free of any connection — real or apparent — to a protected characteristic or protected activity. For any termination that involves a recent complaint, leave request, accommodation request, or injury report, legal review before proceeding is strongly recommended.

Call to Action: Steps Business Owners Should Take Now

1. Audit your employee handbook — Have Oberman Law Firm review or draft your employee handbook to confirm it reflects current law and matches how your business actually operates.
2. Standardize your documentation businesses — Confirm supervisors and managers know how to document performance issues and apply discipline consistently across the team.
3. Create an investigation process — Put a simple investigation protocol in place so complaints are handled the same way every time.
4. Build in a legal check-in — Before finalizing any termination, especially a sensitive one, have counsel review the decision.

How Oberman Law Firm Can Help

• We draft or update employee handbooks tailored to your industry and operations, including safety, compliance, and leave policies.
• We provide pre-termination review to assess documentation and identify risk before a decision is finalized.
• We train managers and supervisors on lawful documentation, discipline, and investigation procedures.
• We help design consistent, repeatable disciplinary and investigation processes your whole team can follow.

Next in this series: Federal Laws to Consider Before Terminating an Employee.

This article is provided for general informational purposes only and does not constitute legal advice. Employment laws vary by state and locality, and the application of any law described here to a specific situation requires individualized legal analysis. Please contact Oberman Law Firm before taking action based on this article.