3 steps managers can take to avoid wrongful termination claims

By: Judy Kneiszel

Publication: Employment Law & Regulatory Alert

Date Posted: 11/05/2021

Avoidingwrongful termination claims

A wrongful termination claim can be costly and time-consuming, even if the company wins the case. Although employers cannot stop employees from filing claims, employers can take steps to avoid them:

Treat the employee with respect throughout the discipline and termination process. There is no reason to ridicule or demean the employee and doing so will only create anger or resentment. These emotions can encourage the employee to “get back” at the employer, and the employee may file a claim just to do so (even if the claim has no grounds). Consider how you would want to be treated in the same situation if the tables were turned.

Follow your company policies consistently. Treating employees differently or applying different levels of discipline for similar offenses under the same or similar circumstances, can lead to feelings of unfairness and negative emotions. An investigator or judge also may infer from such differential treatment that the employer had a discriminatory or otherwise unlawful motive. Consistent enforcement is critical because if a termination is challenged, courts will likely require that an employer do more than point to employee misconduct. The company must show that the employee would have been terminated for that misconduct. If the policy had been ignored in the past, the company will have a greater burden in showing that the misconduct (and not some other, potentially discriminatory reason) was used to justify the termination.

Handle discipline and terminations in private. In most cases, a second neutral party (such as a representative from HR) should be with the employee’s manager during a discipline or termination hearing. In no case should such a hearing be conducted in the presence of coworkers.


Key to remember: Ensuring that terminations are conducted lawfully and with business justification in cases where employees otherwise might be protected is the best way to avoid claims.

About the author
Judy Kneiszel - Human Resources Editor

Judy is an Associate Editor on the Human Resources Publishing Team and she specializes in issues such as recruiting and hiring, onboarding and training, employee communication and discipline, managing problems, team building, inclusion, employee retention, and labor relations

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