3 Tips for Firing and Discipline Decisions


By: The NBI Team

Wednesday, September 9, 2020

3 Tips for Firing and Discipline Decisions

Whether advising a client or addressing personnel issues within the firm, the topic of terminating or disciplining an employee is never easy. Some successful wrongful termination claims result not from an unlawful firing but an employer’s failure to follow proper procedure. Consider the following tips for making firing and discipline decisions.

Focus on the Facts

In many instances, emotions will run high throughout the disciplinary process. This can be true for both the employer and the employee. Employers that feel anger or emotion creeping into the decision-making process are best served by taking a step back and calming down. Taking the time to carefully consider the decision to fire or discipline an employee can help an employer avoid making a mistake that could come back to haunt them.

Removing emotion from this decision-making process starts with stepping back and assessing the situation. Reducing the decision to writing can also help an employer carefully weigh their choices. While making a list of pros and cons might seem like a minuscule task, it does provide a visual tool that could help an employer better understand the potential ramifications of their decision.

Refer to Written Guidelines and Policies

Written guidelines provide employers with an objective framework for evaluating employee performance. When an employee fails to comply with these guidelines, the written rules should provide the employer with clear grounds to take disciplinary action.

Without appropriate policies and practices in place, an employer risks exposure to potential breach of contract, wrongful termination or hostile work claims. Not all written guidelines are necessarily helpful to the employer, either, as discussed in NBI’s course: Employee Hiring, Firing and Discipline: an Essential Legal Guide. These problematic policies could include language that changes an employee’s at-will status or that is discriminatory on its face. Any wording that might suggest an employee is more than an at-will employee could make it much more difficult to discipline or fire them.

Another potential problem can involve a list of potential causes for discipline or termination that the employer holds out to be all-inclusive. An employer that then disciplines an employee for conduct outside of the all-inclusive list could face legal liability.

Document Employee Performance

One successful process that can streamline the termination process is known as progressive discipline, which involves levels of discipline an employee faces each time their performance slips. This process could start with a verbal warning, followed by a written notice if the behavior persists. If it continues, the employer can implement more severe penalties, including termination.

The process of progressive discipline only works if an employer carefully documents every aspect of the employee’s performance. If termination results in a legal claim, the lack of a record could leave a jury with little more than the employer’s word against their employee.

Accurate record-keeping is more than just a helpful tool in an employment dispute. In many cases, creating and maintaining these records is required by law. According to the Equal Employment Opportunity Commission, businesses must maintain personnel records for at least one year. Losing or destroying records related to a disciplinary decision can be as damaging as the failure to document the decision in the first place. If a termination leads to legal proceedings, the court could construe a violation of the recordkeeping requirements as evidence that the firing reason was pretextual.

There is no set format for this documentation, other than it should be in writing. However, there are some important guidelines for documenting employee performance. Each instance of poor performance or employee discipline should result in its own unique report. The report should be detailed and include the facts clearly so there is no ambiguity or confusion. Once the report is finished, the employer should have the employee sign it to signify that they were notified of the report.


This blog post is for general informative purposes only and should not be construed as legal advice or a solicitation to provide legal services. You should consult with an attorney before you rely on this information. While we attempted to ensure accuracy, completeness and timeliness, we assume no responsibility for this post’s accuracy, completeness or timeliness.

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