Most states abide by a doctrine called “at will,” allowing employees or employers to terminate the employment relationship at any time. However, some employers still find themselves defending wrongful termination cases. Avoiding the numerous illegal reasons to fire someone—like discrimination and unfair bias—can protect you from fines, lawsuits, and unemployment claims.
It’s not a bad idea to consult with an HR and labor law expert like Bambee before you fire a worker. Bambee provides unlimited human resources (HR) consulting to small business employers for $99 per month once you sign up. They can help you establish sound discipline practices and policies, update your employee handbook, and prevent you from having to deal with potential wrongful termination lawsuits.
In spite of the at-will doctrine, there are plenty of illegal reasons to fire someone:
1. They Practice a Religion You Don’t Like
Terminating a person’s employment for religious reasons violates the intent of Title VII of the Civil Rights Act of 1964. It’s an example of wrongful termination. Employees have a right to work, free from religious harassment and discrimination. If you fire a person for their religious creed, or for acting on their religious beliefs, you’re likely going to have to pay unemployment. Or worse, they may sue you, and it’s plausible the court would rule in their favor.
Be Proactive: Set Work Policies Protecting Your Business
If one person’s behavior, regardless of whether it’s motivated by their religion, is disrupting your business, you have a right to set policies. Consider having a dress code, prohibiting employees from displaying non-work related items on their cubicle walls, or ask that co-workers create an inclusive workplace free from harassment and discrimination.
It’s best to find out what the work-related issue is that’s impacting job performance. Are they not answering their phone at certain times of the day? Is their preference to wear religious garb a safety issue in the kitchen? Are they refusing to serve certain guests? Those are all behaviors that may warrant disciplinary action. If they’re not doing the job for which they were hired— document that—and then use “failure to perform” as the termination reason, not religion.
2. They Want Six Weeks Off for Surgery
Firing someone for requesting medical leave is prohibited by the Family Medical Leave Act (FMLA) and is an example of wrongful termination. There’s no need to do it. The FMLA provides employees with up to four months of unpaid leave for medical and family needs. However, there are provisions for smaller employers (50 employees or less) as well as for new hires.
“If an employer is in violation of public policy—meaning doing things that are morally or ethically wrong—and the employee speaks up and gets fired, it is illegal. That includes terminating an employee for exercising a legal right like voting or taking a family leave. Of course, morals and ethics vary from state to state, and one termination decision that might be prohibited in one state might be allowed in another. “
– Jake Hay, Partner and Head of Development, PopShorts
Potential Solution: Let Employees Choose Alternative Leave Dates
If a person wants to take leave, and you’re not obligated to provide it (for example, if they haven’t met the work hours requirement or you have under 50 employees), you can decline their leave request and let them choose to reschedule the surgery. They may decide to quit and reapply after surgery, take whatever sick leave they’re eligible for, or wait until after the holidays.
However, firing them when you’re required to provide FMLA, or not having an FMLA policy set up to address their time off request, is likely to get you sued and fined.
3. They Took Too Many Bathroom Breaks
The Americans With Disabilities Act (ADA) protects disabled workers—including those with urinary tract infections and pregnant moms. So before you fire someone for taking too many bathroom breaks, you need to determine whether there is an underlying medical, health, or disability issue causing the behavior. Violating a person’s ADA rights is an example of wrongful termination. If they’re an exempt employee, you have no right to monitor their minute-by-minute activities in the first place.
Potential Solution: Communicate & Provide Accommodations When Necessary
It’s best to sit and talk with the employee about why they’re violating the company’s rest break policy. You may want to ask them if they need a “reasonable accommodation per the ADA” to deal with a health issue. Of course, if they’re an hourly employee heading to the toilet to shirk work, document it, and fire them. However, doing so without understanding the underlying issue may leave you on the losing end of a wrongful termination lawsuit.
4. They’re Pregnant
Some employers think it’s okay to terminate a person because they’re pregnant, thinking “well, they’ll need time to spend with their new baby, anyhow.” However, it’s not up to the employer to determine what work can be done or how long an employee wishes to work during pregnancy. If fact, the FMLA and the Pregnancy Discrimination Act, as well as many state laws, protect pregnant moms on the job. Firing a woman because she’s pregnant is a solid example of wrongful termination.
What to Do Instead: Change Your Mindset
To prevent discrimination based on pregnancy, you need to change your mindset. Educate yourself and your team on updated laws that protect workers based on their gender (female), family status (mom), and disability issue (pregnancy). It’s a triple whammy. You can’t not hire them, not promote them, and not treat them like every other person on your team. If you plan to terminate a pregnant mom just because she’s expecting, you may as well sign over the deed to your business, because it’s going to cost you if she sues.
5. They Missed Work Due to Domestic Violence
Many states protect individuals who are victims of domestic violence under sick leave rules. Terminating an employee in those states is illegal for that reason alone. It’s often not possible (and may be too traumatic) for a domestic abuse victim to call their boss or report what’s going on right away.
Be Proactive: Establish a Paid Time Off Policy for Emergencies
It’s best to have a sick leave or paid time off (PTO policy) as well as a no-show policy that clarifies the rules for taking emergency time off to deal with family and medical issues. Many firms have a three-day no call, no show policy that considers an employee to have voluntarily quit or abandoned their job after three days of no contact. That can be a reason for termination, even in states that protect victims of domestic violence.
6. Their Kid Was Sick, Again
Let’s say you have a single dad who can’t come in because one of his kids needs to go to the doctor. In many states, sick leave laws allow for this. If the illness is due to a recurring issue, like ongoing doctor appointments for his disabled child, the FMLA can provide for intermittent time off. Terminating a parent because their child is sick can be an illegal reason to fire someone.
Be Proactive: Offer Flexible Work Alternatives & Leave
Clearly explain your family medical and sick leave policies to all workers upon hire. Also, consider providing flexible work alternatives or work-from-home options for employees.
If an employee uses all their sick leave and accrued time off and still needs to take time off for a family issue, consider offering them intermittent FMLA or allow them to take the time off they need unpaid. As an alternative, before it gets to that point, you may want to coach them on how to find a daycare or family member to care for their child when sick.
7. You Saw Them Taking Drugs at Work
Be careful you don’t terminate an employee for taking prescription drugs. And never “guess.” If you witness behavior you think may be violating company policy, do some investigating first. You may be violating the ADA if you fire them when they have a valid medical reason to take prescription medication at work.
Be Proactive: Establish a Workplace Drug Policy
Make your drug policy work-related. Be clear about what substances you prohibit on the job. In that policy, require that employees let you know if they’re taking medication that impacts their ability to work. For example, if you hire bus drivers or forklift operators, you need them to be clear-headed. Thus, they may need to request time off if they’re taking a drug that will impair their driving ability.
You can’t allow them to drive while on pain medications that make them loopy—that violates safety regulations as well as their driver’s license. You can terminate an employee for not being able to do the essential functions of the job, like driving a vehicle, but you’re likely to get into trouble with the ADA if you fire them for taking prescribed medications, including cannabis in some states.
8. They Failed a Drug Test
It’s a misconception that you can fire someone for failing a drug test. Let’s say your anti-drug policy prohibits cannabis. If it’s legal in your state as a recreational drug, it may show up in their system days or weeks after use with no impact on their job or work performance. In addition, in most states, a person who fails a drug test has a right to request a second test. So make sure you follow the rules in your state before you terminate their employment. Your actions could be illegal.
Be Proactive: Create a Drug Testing Policy
Provide a drug testing policy that ensures confidentiality, maintains a chain of custody (so the drug test can’t be tampered with), and allows employees to take a second test—perhaps using a different method. Start by using a free drug testing policy template you can download from the web.
9. You Expected She’d Quit After Giving Birth
The FMLA and pregnancy discrimination laws protect a woman’s right to take time off to care for her baby. In fact, they protect both parents’ rights to spend up to four months with a newborn or to adopt a child. If you fire someone simply because they had a baby and you don’t want to deal with their family issues, that’s a clear-cut case of discrimination based on family status, and it’s illegal.
Be Proactive: Establish a Leave Policy
Some states, like California, require even small employers to provide leave to pregnant women and new parents. Consider establishing a leave policy early on. If an employee takes time off to have a child and doesn’t contact you or come back to work as planned, that’s considered job abandonment, and it’s grounds for termination. However, you can’t be proactive and fire them just in case that happens.
10. They Were Insubordinate, Refusing to Follow Directions
If you ask an employee to do something that in fact violates a law, such as Occupational Safety and Health Administration (OSHA) safety regulations for shoring a trench, or for refusing to work without mandated safety gear, you can’t turn around and fire them. Firing them is considered retaliation, a common example of illegal reasons to fire someone. What you perceive to be insubordination is them exercising their right to work in a safe and healthy workplace.
Potential Solution: Confirm Your Work Request Was Legal
If an employee refuses to do something you’ve asked, you may want to determine whether your request was legal or right in the first place. In fact, the very act of asking your workers to break the law is illegal. Firing them when they refuse to do so just makes it worse for you. Instead, hear your employees out when they push back due to safety or legal concerns. They may be educating you and helping you avoid breaking the law.
“A number of states have a so-called ‘public policy’ exception which prohibits retaliating against an employee—including by firing him or her—if that employee took action to promote a clearly established public policy of that state. While the laws of each state differ, these states generally prohibit firing an employee for exercising his or her rights or refusing to commit an illegal act.
“For example, a boss might instruct a subordinate to sign and submit to the government a bogus financial disclosure form. That subordinate declines to do so because he or she knows it to be illegal, and the supervisor fires the subordinate because he or she did not commit a crime. In a number of states, that would constitute a violation of the ‘public policy’ exception, and the employee could not be fired for refusing to commit a crime.”
– Andrew E. Swan, Esq., Founding shareholder, Lewis Kuhn Swan PC
11. They Reported a Safety Violation
Similar to refusing to violate the law, OSHA specifically prohibits retaliation against an employee for reporting a safety violation. That means if they tell you about a safety issue, like a broken eyewash station, or report an electrical hazard to OSHA directly, you can’t fire them for that. Whistleblowers are protected by OSHA for the greater good—the health and welfare of workers.
Be Proactive: Create a Safety Reporting Policy
Provide a policy for workers to report safety concerns to you and address all concerns that come up. That will likely prevent an employee from feeling as if they have to go over your head to report the issue directly to OSHA. In any case, fix the problem instead of firing the employee. Chances are, they’re just looking out for their own safety, and that’s their right.
12. They Complained About Sexual Harassment
Some small businesses just want complainers to go away. However, firing an employee for reporting a sexual harassment concern can land you in hot water fast. It’s considered retaliation and it’s in complete violation of anti-discrimination laws.
Be Proactive: Develop Anti-discrimination & Sexual Harassment Policies
Before your first complaint ever shows up, anticipate it. Individuals in the workplace are hypersensitive to sexual harassment concerns due to recent media attention given to this important workplace issue.
Create an anti-discrimination and anti-harassment policy and ensure workers have a way to report issues to you directly or to their manager or HR representative. Consider starting with a sample sexual harassment policy. Then, stand by it, and welcome the chance to investigate and resolve complaints before they escalate.
13. They Used the Wrong Dressing Room
Let’s say that the warehouse workers changing into work clothes for their shift noticed that a female was in the dressing room. When you confront the worker, you find out that she’s transgender, but prefers to dress in the men’s locker room. Firing her, for this reason, may violate her rights in many states that prohibit sexual harassment based on gender preference.
Potential Solution: Focus on Protecting All Workers’ Concerns
You’ve got to balance your need to protect both sets of workers. One way to do this is to stagger their start times so that the workers aren’t using the same facility at the same time, or you could add a unisex dressing room. However, if you’re in a state that protects workers regardless of their sexual orientation or gender preference, you can’t fire them for that reason alone.
14. They’re Claiming Workers’ Compensation for On-the-Job Injuries
Similar to any kind of retaliation, you can’t fire a worker because you don’t want them to file a worker’s compensation claim. If the incident was their fault (perhaps they weren’t wearing the required eye protection), you can write them up for that. In fact, if it’s been a repeat issue, you may be able to terminate them for failing to abide by company safety policy. However, if you fire them for putting in a workers’ comp claim, you’ll likely have to defend yourself to the workers’ comp board, in addition to the labor board.
Be Proactive: Set Clear Safety Policies
If you want to reduce your workers’ comp claims, ensure your safety policies are clear, your employees are trained, and your managers are enforcing the rules. Provide the appropriate protective gear and discipline those who violate safety practices, putting themselves and others at risk. Many workers’ comp insurance providers have downloadable tips and tools. But don’t wait until an accident happens to discipline a worker by firing them just as they’re about to or have put in a workers’ comp claim. That will come back to bite you.
15. They’re Injured Off-the-Job & Can’t Work
Let’s say a waiter who works for you broke their leg skiing, and you fire them. You need to consider that FMLA protects workers’ rights, including the right to take up to four months’ unpaid time off to deal with a personal or family medical issue.
In addition, some states now have paid sick leave laws requiring employers to give paid (and unpaid) time off in addition to what FMLA provides. And having a broken leg may be considered a disability under the ADA, requiring you to offer a reasonable accommodation (such as a motorized wheelchair).
Be Proactive: Create an FMLA Policy
Once your firm reaches 50 employees, the game changes. You need to establish an FMLA policy and allow workers who meet the requirements to apply for FMLA time off. If you’re in a state with state sick leave laws, you need to comply with those as well by documenting your sick leave policy. And whenever a worker presents a physical work impairment, it’s best to ask if they need a reasonable accommodation to do their job.
16. They Left Town to Help Sick Family
Let’s say the employee called early Monday morning to inform you of an emergency family issue. You’re so mad you fire them on the spot for leaving you shorthanded. That’s likely to be illegal based on FMLA as well as per sick leave laws that protect workers’ rights to care for the medical needs of their family.
Be Proactive: Offer Sick Policy & Employee Assistance
An FMLA policy and a sick leave policy can help you address such issues in advance. In addition, it’s important to be realistic—people have families. If you give your pregnant employees time off for maternity leave, you’ve got to allow similar time off for employees to manage their other family health and medical issues
Many companies offer employee assistance programs (EAP) to help employees deal with such concerns. Some provide resources for counseling, in-home elder care, and childcare provider resources. Can you allow the worker to work remotely during this personal family challenge? Can you offer them paid sick leave or PTO to use? In addition, it’s never a bad idea to have a backup plan, such as temporary staff that can fill in when an urgent family matter calls a key team member away from their job.
17. Customers Complained About Your Employee’s Acne
The Americans with Disabilities Act (ADA) is very clear that you can’t discriminate against a person based on their disability as long as they can do the job. But a little known detail is that disfigurement is covered under the ADA as well. You can’t fire someone because you don’t like that they have a medical issue that makes them look less attractive.
Be Proactive: Create a Work Policy for Cleanliness
You can set a work policy for cleanliness, hand washing, and the like. And you can choose to put your better-looking employees in client-facing roles (as long as there’s no discrimination). But if one of your employees is struggling with a real or perceived disability, it’s best to make accommodations rather than punishing the worker and violating their ADA rights.
Perhaps the employee would rather work the night shift or prefer to do a back-office role anyhow. Letting the employee request a reasonable accommodation might work. Another perspective to consider is if your customers don’t like how your employees look, what else are they likely to complain about? Maybe it’s your customer that needs to be fired.
18. They Took Off Work for Jury Duty
Let’s say you don’t have a jury duty policy and feel you can’t afford to give your workers time off for jury duty. Spoiler alert: it’s not your choice. Your employee has a legal obligation to report to jury duty. You don’t have to pay them for the time off, but you can’t fire them for doing their civic duty.
Be Proactive: Create a Jury Duty Policy
Establish a jury duty policy that gives you plenty of advance notice when one of your employees is served a notice to report to the court. They typically get at least 30 days’ written notice. That gives you time to adjust your work schedule or apply for a deferral based on a business hardship. In fact, some states require you to pay workers the difference between their salary and what they get paid while on jury duty. So it’s important you know when employees are summoned.
You can discipline or even fire someone for not abiding by your notice policy and leaving you shorthanded with no notice. However, don’t fire an employee for doing jury duty, because that’s illegal.
19. Their Manager Didn’t Want Female Team Members
There was once a day when managers could get away with discriminating against a worker based on sex or gender. That’s no longer true. You can’t fire a female worker just because the manager chooses to play favorites. That’s the kind of discrimination protected by the civil rights act.
Be Proactive: Educate Managers on Discrimination Laws
Educate your managers and employees on labor laws, including anti-discrimination laws. Also, document your policy on how to create a legally compliant and inclusive workplace. Labor laws have changed, but some managers haven’t. It’s on you to educate, coach, and even discipline managers who practice discrimination or harassment on the job.
20. Their Background Check Showed a Criminal Record
Many states have “banned the box,” meaning that employers can’t ask job applicants about their criminal history. The thought here is that these individuals have “served their time” and deserve a fair shake in the workplace. If you’re in a state like California, you may find yourself with a labor law violation and potential hiring practices lawsuit if you fire someone based on their criminal background, unless it’s a likely risk based on your business, such as a fast loans shop or daycare.
Be Proactive: Research State Laws That Protect Ex-criminals
First, look up your state laws by going to the .gov site for your state. It may be a labor board, an employer website, or some other state regulatory agency that governs local workforce law in your areas. If you’re in a state that’s got laws on the books to protect reformed convicts, make sure you follow the rules by ensuring workers get an individualized assessment, and that the reason for firing them is based on a business need or employment risk, not simply their criminal background.
“Often, someone with a criminal past will get fired after the background check if they don’t have a clean record. That’s because employers don’t realize they are required to conduct an ‘individualized assessment.’ That’s a process that allows the employee to explain why an employer shouldn’t be worried. For example, a bank might be reasonably concerned about a teller with a previous bank robbery conviction. It’s clearly connected.
“But one of my clients was working with the homeless, helping them get into bridge housing, and her employer found out that she had a conviction for a misdemeanor accessory to a shoplifting charge. If it was a retail store, there’s a clear reason for concern, a clear connection. But my client was fired although she did not pose any risk to her homeless services agency employer. Many employers aren’t doing this process properly, and it’s a serious violation of the law.”
– Ron Zambrano, Employment Litigation Chair, West Coast Trial Lawyers
21. They Stole & Wouldn’t Take a Polygraph Test
Due to the unreliability of polygraph tests, most states allow employees to opt out. Your employee has a right to protect themselves. Like other legal protections, firing a person for exercising their right constitutes retaliation. It’s just another example of wrongful termination.
Potential Solution: Use Tangible Data to Prove Accusations
You can ask an employee to take a polygraph test, but you can’t force them. Instead, it’s best to investigate criminal allegations by looking at hard data (security cameras) or by talking to witnesses. In any case, when terminating an employee for theft (which you may be required to prove to a court), it’s best to base the termination reason on “violation of company policies” and leave it at that—especially if you can’t prove it,
22. His Team Didn’t Like His Native Language
Workplace harassment is prohibited by the same laws that protect workers based on race, religion, and more. You can’t allow team members to pick on, mock, or otherwise harass workers without setting yourself up for a harassment lawsuit. And you certainly can’t support that kind of harassment on the job by firing a person based on their race and national origin.
Be Proactive: Make Anti-harassment Training Mandatory for Workers
It’s time to do some anti-harassment training. Not only should your staff be trained on the kind of discriminatory behaviors that are prohibited by law, but they should also be trained on how to report these kinds of discrimination. You may want to hire an HR expert or work with an HR consultant to help you implement a culturally diverse, compliant, and inclusive workplace.
Bambee is an HR consulting firm tailored to the unique needs of small businesses that don’t have a full-time HR manager on staff. They provide policy manuals, compliance auditing tools, and HR best practices. For as little as $99 per month, Bambee provides unlimited HR consulting to reduce the risk that you’ll run afoul of the law. Contact Bambee for a free consultation.
23. They Kept Falling Asleep at Work
Firing a person for sleeping on the job may be valid—especially in roles like a security guard or childcare provider where alertness at all times is critical to the role. However, the person may claim they were resting their eyes, taking a legally authorized break, or sleeping during their unpaid lunch hour.
Further, if the individual suffers from a medical disorder like narcolepsy, you may have violated the law by not asking the employee (covered by the ADA) if they require a reasonable accommodation. If the person is salaried and their naps have no negative impact on job performance, you may also be fined for misclassifying them as exempt instead of non-exempt, since it appears you’re tracking their “time.”
Potential Solution: Communicate & Offer Reasonable Accommodations
It’s a best practice to talk with employees about any behaviors that may be due to a medical condition. Further, an employee isn’t required to disclose their medical issues to you (under HIPAA’s privacy rule), but it’s a good chance to ask if there’s any kind of reasonable accommodation they may need in order to do their job.
24. They Were Living in Mexico
When you hire someone, you’re required to obtain I-9 documentation to verify that a person can legally work in the U.S. If they provide the required documentation, they’re protected from discrimination. Where they actually reside isn’t relevant. As long as they have the right documentation, you can’t fire employees due to where they live.
Here’s what a trial attorney would say:
“Several federal laws extend protections to employees from being fired, including the Immigration Reform and Control Act (IRCA), which makes it illegal for most employers to use a worker’s alien status as a reason for terminating their employment, as long as the employee is legally permitted to work in the U.S.”
– David H. Perecman, Founder and Lead Trial Attorney, The Perecman Firm, PLLC
25. I Just Didn’t Like Them
The “at-will” employment doctrine gives you the right to end the employment relationship for any reason or even for no reason at all. However, this kind of firing may still be an example of wrongful termination if the employee had a contract, you failed to publish your at-will employment policy, or you were very specific in your employee handbook about reasons a person could get fired (which results in an implied contract).
Be Proactive: Include “At-will” Language in Contracts
This may seem to contradict common sense, but it’s not a good idea to detail the reasons a person might get fired in your employee handbook, as it implies they can’t be fired “at will.” In addition, make sure you include an “at-will” employment clause in all employee offer letters, employment contracts, and other hiring documents.
26. He’s Too Old to Learn Our Software
This is another misconception and cause of discrimination in the workplace. The age of a person doesn’t always impact their ability to perform on the job. In fact, many older workers are just as active on the internet and social media as millennials, some even more so. Firing a person over age 40 for any reason than job performance or policy violation is likely to violate the Age Discrimination in Employment Act (ADEA).
Be Proactive: Provide Software Training to Everyone
Try to get past your age bias. Provide software training and support to all employees regardless of their age or any other factor that’s not work-related. In some cases, you may, indeed, have to provide additional coaching and support to those who didn’t grow up with a cell phone in their hand. If you fire them before they have a chance to learn, that’s probably not going to hold up well in a court of law. Age discrimination provides a clear example of illegal reasons to fire someone.
27. They Didn’t Provide a Doctor’s Note
Requesting an employee to bring in a doctor’s note violates the intent of medical privacy laws. Further, firing a person for not doing so may very much appear to be a means of retaliation when an employee calls in sick. Sick leave laws do not require that employees provide a doctor’s note.
Be Proactive: Exclude Doctor’s Note Requirement From Your Policy
It’s important to document your sick leave policy along with all paid and unpaid time off policies clearly in your employee handbook. However, exclude any requirement for an employee to “prove” they were sick by requesting a doctor’s note.
28. They Started Dating a Co-worker
The problem with firing a person for dating a co-worker is that you’d have to have a policy in place prohibiting such behavior, and policies like that tend not to hold up in court. So which person would you punish—the manager for dating an employee or the employee? If the behavior has no impact on the individuals’ workplace performance, it’s irrelevant if they’re dating.
In fact, they’re likely to sue you for wrongful termination based on gender discrimination or for violating their personal freedom.
Be Proactive: Implement Policies With Employee Dating Rules
It’s nearly impossible to prevent co-workers from forming personal relationships. However, to protect your business, you can implement a policy that requires co-workers to disclose such relationships and prevent individuals who are dating from reporting to one another. You can also establish policies preventing workplace displays of affection or favoritism to prevent creating a hostile work environment. If a person violates your policies, you can terminate them for those reasons instead.
29. They Wouldn’t Cut Their Big Hair
There’s actually a New York law that prevents you from terminating someone due to their natural African American hairstyle. It’s just another protection afforded to black Americans who are commonly discriminated against in the workplace.
Be Proactive: Focus on the Impact Hair Has on Your Business
Keep your workplace policies and disciplinary processes focused on things that matter to the business and the job. If you are in the food service industry, it’s common to require workers to cover up their hair and beards, and those rules apply to all workers. And unless you’re a shampoo model, it’s unlikely that your work efforts are impacted in any way by an employee’s hairstyle.
Labor laws are as various and sundry as each of the states where they’re enforced. Many illegal reasons for firing an employee are based on violations of anti-discrimination laws. When terminating a worker, it’s a best practice to convey the rationale in job-related terms such as “failure to perform the job up to expectations.” Further, have written performance data and documentation to back up your rationale just in case the employee sues your business for wrongful termination.
One of the benefits of partnering with a small business HR consulting firm like Bambee is that you can get feedback from an HR expert before you terminate an employee. In fact, as soon as you begin noticing performance issues, you can contact them for advice on how to proceed. That may reduce your chance of being sued for wrongful termination as well as protect you with documentation to defend such a charge.