Framework · Labor & Employment
Termination Risk Review: Nine Questions Before You Decide
Before a termination, check the reason, the record, and whether the company has treated similar cases consistently. These nine questions put that review in writing, especially when the decision needs a closer look.
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Can you state the reason in one sentence?
One sentence, plain words, no euphemisms — the sentence a manager could repeat under oath without flinching. If the stated reason isn’t the real reason, stop here: a sympathetic real reason argued honestly beats a tidy pretext every time, because pretext is how weak claims become strong ones.
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Does the file support the sentence?
Read the last two performance reviews before the meeting is scheduled. If the file says “meets expectations” and the sentence says “persistent underperformance,” that gap is the plaintiff’s opening exhibit. A gap doesn’t always mean wait — but it means you should know exactly how you’ll explain it.
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How were others treated for the same conduct?
Same rule, same consequence is the whole game in discrimination defense. Pull the comparators now — same policy, similar role, similar history — and if someone who does not share the employee’s race, sex, age, or other protected characteristic got a warning for what this employee is being fired for, you need a reason for the difference that survives daylight.
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What happened in the last six months?
A complaint to HR, an FMLA request, an accommodation request, a workers’ comp claim, a safety report, a wage question. Proximity reads as causation to a jury, whatever the truth is. Timing alone is rarely fatal — but it changes how carefully the rest of this list needs to hold up.
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Who is actually deciding?
A single decision-maker with a history with this employee is a risk profile of its own. Have someone independent — HR or counsel — review the recommendation and the record before it’s final, and make sure the decision doesn’t simply launder one supervisor’s account.
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Is there a contract in the way?
Offer letters, handbook promises that outgrew their disclaimers, commission plans, severance plans, restrictive covenants with notice provisions, a collective bargaining agreement with just-cause and grievance procedures. At-will is the default, not a guarantee someone hasn’t modified.
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Do the mechanics create their own claims?
Final-pay timing rules vary sharply by state — some require payment immediately or within days. Michigan requires paying a discharged employee all wages earned and due immediately, as soon as the amount can be determined, and giving every departing employee Form UIA 1711 or an equivalent notice. Accrued PTO payout, earned commissions, expense reimbursements, COBRA notices, and benefits cutoff dates each carry penalties when missed. The underlying termination can be flawless and the mechanics can still buy a lawsuit.
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Should you pay for a release?
Severance for a signed release is often the cheapest insurance available for a termination with any of the wrinkles above. If the employee is 40 or older, the release needs OWBPA compliance — plain language, an express reference to the ADEA, no waiver of future claims, consideration beyond what the employee is already owed, written advice to consult a lawyer, 21 days to consider (45 in group programs, with disclosures), and 7 days to revoke. A release that doesn’t comply doesn’t release the age claim.
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How will the meeting itself go?
Short, scheduled thoughtfully, two company representatives, the reason stated plainly once, logistics in writing, no debate. The meeting is not the place to soften the message into something inaccurate — kind delivery, honest content. What’s said in that room gets quoted in the demand letter.
Review the file as a future reader would. The reason, timing, and supporting records should tell the same story. Address inconsistencies before the decision.