It is four in the morning. The windows to the bakery have clouded over with steam. Outside the roads have been plowed but the snow continues to fall in bursts. Melanie stands inside gaping at the previous night's orders that have somehow come out burned. The chocolate macadamia nut cookies look and feel like hockey pucks. The brownies have blackened edges. She knew to fix the problem would take several hours, maybe even half her day, and she had her own work to do. Melanie had to bake a wedding cake and make several dozen cookies that day.



But Melanie took the job into her own hands. Of course she was frustrated at having to perform double the work, but could she fire her employee for this disaster?

If she fired him, could her baker come back and sue her for wrongful termination? It could ruin her entire business and damage her business' creditability in the community. But if she didn't get rid of him soon, her business was headed for disaster anyway.

This is a common worry with small business owners nationwide. They hire help once their business becomes successful and they can support a full-time employee. But their hopes turn to disgust when that employee does not care as much about the outcome of their work as the owner. In Melanie's circumstance, she had enough of the poor performance, but like many small business owners she had no experience firing employees. She had not kept records of performance, and therefore ran a high risk of a wrongful termination lawsuit.

Firing Employees The Safe Way

So how do business owners like Melanie protect themselves when firing employees? From my experience, I have identified 3 basic items you must have before firing any worker.

1. Established workplace rules and guidelines

2. Proper documentation of the employee's problems

3. A legitimate reason for termination

Let me cover each of these briefly. You will discover that proper documentation helps protect you from the legal retaliations of former employees. But before you can ever document, you must first set up basic workplace rules. Then you must clearly state these rules to all employees. Finally, you must apply them consistently to everyone, including yourself.

Once you have set up the rules, you can then begin the second item, documenting the employee's problems. Often Human Resource Managers refer to this as progressive discipline. Your goal here is twofold. First, you want to try rehabilitating the employee. Second, you are collecting evidence to support your reason for firing if your worker fails to improve.

This leads us to the third item. You must have a legitimate reason for terminating the employee, and you must communicate this reason to your worker. Many small business owners believe they don't have to give a reason for firing. Because they live in an "at will" state, they think they can fire anyone whenever they choose.

Unfortunately, they are wrong. Many lower courts have given new protections to employees making "at will" almost meaningless. In today's legal environment, employers who rely on it for legal protection often find themselves on the losing end of a lawsuit. When the employer has no documentation and gives no legitimate reason for firing, the courts typically favor the employee.

In Melanie's case above, she had no documentation and no workplace rules. A few months earlier her baker didn't show up for work and failed to even call in. She did not have the tools at that time to let him go.

However after having to do double the work that one snowy day, she took the initiative to set workplace rules. True to form, her baker continued to show up late when he showed up at all. When he did come to work, his performance continued its downward spiral. Despite her repeated warnings, he showed no improvement.

Once she had enough documentation, Melanie fired her incompetent employee. And she didn't flinch when he asked why. She said it was because of his poor performance and showed him the warnings to prove it.

Because she fired properly, her legal risks from the termination were minimal.

By firing employees the right way, many small businesses will increase their success and find that their workplace grows with the right employees. The wrong employees and the wrong approach to firing workers can cost a business owner his or her livelihood.