What do I Need to Know when Firing a Problem Employee?

As the owner of a corporation, LLC, or other business, you want employees on your team who improve efficiency and increase profits. However, as cautious as you may be during the hiring process, there is always the chance that an employee may become a problem. In some cases, talking to an employee and discussing an issue can result in them changing their behavior for the better. In other cases, behavior may get worse. You may be getting complaints from your customers, vendors or even other employees. In such cases, it may be best to terminate the employment relationship.


 Often, the problem is that not many people take getting fired lightly.  While California is an “at-will” employment state, meaning employees can be fired for any legal reason (e.g., non-discriminatory) or no reason at all, many people get angry and look for a reason to hold the business accountable for their job loss, even if it did nothing wrong. For example, if you excuse a male employee for being late regularly yet fire a female employee for tardiness, you may be accused of sex discrimination. Allegations of discrimination, harassment, retaliation, and wrongful termination can be made. Even if such allegations are unfounded, you could have to spend valuable time, energy, and money defending against these claims.

The experienced employment law attorneys at Structure Law Group, LLP can help you establish employment practices and employee handbooks that will allow the employment process to run more smoothly.  The following are some things to consider when firing a problem employee:

 Keep thorough records.

If an employee’s productivity is decreasing below standards, keep regular performance records. If an employee is being rude or inappropriate, document every known incident. Keep track of attendance, tardiness, and other related issues. If you do this for all your employees, you will have a good record if a claim for illegal termination is ever made against you.

Understand employment laws.

When you hire even your first employee, you should understand all relevant employment laws and the possibility of legal action under each one. For example, be aware of the following:

  • Is an employee a member of a class protected by Title VII of the Civil Rights Act of 1964 or another anti-discrimination law? You may have to show that the firing was not discriminatory if a discrimination claim is made.
  • Did your employee recently take qualified time off under the Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA), or make a claim for workers’ compensation benefits? You may risk allegations that the termination was in retaliation for such actions.
  • Did the employee recently report concerns about wages, workplace harassment, or unlawful acts by other employees? They may claim unlawful retaliation.

 Be brief and professional.

When firing an employee, saying less is often preferable. Getting into the details of the employee’s wrongdoing can make them angrier and put them on the defensive. It may even be better to claim the termination is due to the direction you are taking with the company instead of discussing the behavior of the employee. Even if the employee becomes upset or emotional, remain calm and professional. It is usually best to have an HR representative or another manager in the room when the firing occurs.

 Contact a California Business and Employment Law Firm Today

 At Structure Law Group, LLP, we counsel corporate, LLC, and other business owners on how to establish employment practices, the best approach to legally sensitive issues, as well as how to develop policies that keep your business in compliance with California law. Please call us today at 408-441-7500 to speak with a skilled employment and business attorney.