Top Employment Lawyers on How to Avoid a Wrongful Termination Suit

Firing employees consistently ranks as the worst duty an employer must perform. Wrongful termination lawsuits are the most commonly litigated category of employment claims and cost employers over $482 million in 2016 alone. These claims can arise when employers violate an employee’s civil rights through workplace harassment or discrimination, breach a contract with an employee, or retaliate against an employee for protected activities such as filing workers’ compensation or whistleblowing. Even rejected claims can generate huge legal fees, so following proper procedures and protecting workers’ dignity can save your company big money.

Following are some simple guidelines to follow when it’s time to say goodbye to an employee. This article does not constitute legal advice. Keep in mind that you should always consult a qualified employment attorney before making any termination decisions. In Chicago, we recommend the law firm of Roth Fioretti (check their avvo profile) for all employment law issues.

1. Make Sure It’s Legal

The first rule is also the most simple. Before taking the drastic action of terminating an employee, question the motives behind the prospective firing internally.

If a supervisor recommends termination, make sure he or she can articulate provable non-discriminatory reasons for the action. If the employee at issue has a history that involves any protected activity, such as filing an EEOC claim or seeking workers’ compensation, make sure there is no relation between the protected activity and the termination, and be prepared to discuss this with the employee. If the employee has a written contract, make sure your company complies with all prescribed procedures. If there is a company handbook, make sure all policies have been followed by everyone involved.

2. Communicate, Communicate, Communicate

When hiring an employee, expectations should be explained. When firing an employee, it is important to explain why or how the employee failed to meet those expectations. This could be done in writing, but if so, make sure to follow proper procedures set out by human resources.


If the employee has broken the rules, this should be articulated. If job performance is the issue, it should be explained calmly to the employee. If the termination is part of a company lay off or cut back, this should be explained to the employee as well.

3. Allow for Dignity

When choosing how or when to terminate someone, consider who could be watching and do everything possible to avoid embarrassing your employee. Asking him or her to stay a few minutes at the end of the day after coworkers have departed might be considered. If company property must be returned, consider how to facilitate the transfer better. If a company car is involved, get them a taxi.

4. Have A Witness

It is always best to have an unbiased witness to a termination. A representative from human resources should either deliver the news or at least be present for its delivery. If this is impossible, document the meeting with a visible audio recorder and tell the employee the meeting is being recorded.


Terminating employees is painful and can be emotional for everyone involved. Giving clear communication and allowing for a graceful departure can help make the best of a bad situation and save your company a great deal of money in the process.