What Businesses Should Keep In Mind When Terminating an Employee

Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Click here to see the first question about non-compete agreements and Ruth’s response. 

Firing an employee is always tricky. What are some things owners need to keep in mind if they let an employee go?

It is always hard to fire an employee. Employees strike back in a myriad of ways, some fair and some not so fair, such as filing a discrimination claim with the Missouri Human Rights Commission or the EEOC, complaining bitterly on the Glassdoor website, or, absent a non-compete, going to work for your competition or soliciting your employees and customers.

Positive actions include offering a severance agreement which includes a non-compete. Some employers make introductions to other employers where the fit might be better. This works well if the employee is not being let go because of performance but because of a lack of work or occupying the wrong seat on the bus. You could also put the employee on paid or unpaid leave for 3-6 months until the employee finds a job. It is easier to find a job if you have a job.

How important is it to have the proper documentation before firing an employee?

Make sure you are communicating with your attorney when letting an employee go. Generally, clients call me a day before they want to let someone go. They’ll either want to terminate the next day or they’ve already terminated the employee. Saying the right things when you terminate and having documentation in place is essential. Your attorney can help you with the process.

Missouri is an employment-at-will state. However, if you terminate for an unlawful reason, that could cause a problem for the employer because you have to prove cause. To do so, the employer must show the violation that led to the termination, previous warnings (unless egregious, then not needed), and that similarly situated employees were treated the same.

If nothing is in the file and the employee has worked at the company for 30 years and you want to terminate them immediately, you will have issues. Sometimes, instead of firing immediately, the employer should consider backing up and create a more defensible case.

Posted by Attorney Ruth Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

Published in December 2022 issue of St. Louis Small Business Monthly

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