How to Fire Someone and Not Get Sued

You don’t want to have to think about terminating an employee. But if the time comes, be prepared with a solid policy and procedure that you can rely on to handle the situation with consistency and confidence.

Cheryl Perez, founder and president of BIG HR, presented last month’s WebEd Series Webinar on a topic important to any business owner who employs at least one other person: How to Create and Implement an Effective and Easy Termination Policy and Procedure Without Getting a Lawsuit.

Cheryl shared the following three secrets to terminating an employee without having it lead to a lawsuit.

Secret No. 1: There are things you need to do before you terminate someone. And when you do those things, they’ll probably terminate themselves for you. You need to make sure there has been a Performance Improvement Plan identified and created, along with a specific deadline date. When people don’t meet these performance improvement requirements, they tend to then resign.

Secret No. 2: You need to follow a real termination policy and process to keep things consistent and fair for all employees.

Secret No. 3: Termination doesn’t end when that employee walks out the door. You need to make sure you have your post termination process squared up. Losing an employee, even if it was someone who wasn’t performing up to par, can impact your business for the next several months when you don’t have the proper off-boarding process in place.

Ask yourself the following questions to see if you need further assistance in the area of employee termination:

  • Are you worried about termination impacting your business?
  • Are you concerned about retaliation?
  • Are you losing sleep because of an employee?
  • Do you have someone right now you feel like you need to get rid of but you don’t know if you can or how to go about doing it?
  • Is your business being held hostage by poor-performing employees?

If you don’t even know where to start, let’s take a closer look at each of the secrets.

Secret 1: It’s important that you have an established workplace code of conduct and that it’s updated in your employee manual. Address the actions and behaviors that if committed its grounds for immediate termination. An effective employee discipline and performance improvement process should be progressive. Once you have this in place and employees and management staff and HR team are trained on it, then once employees enter into this process they know they have begun the cycle that can end in their termination. Employees engaging in this process begin to address their core behaviors that are getting them in trouble. Also keep in mind that verbal counseling can be part of the process but can only get you so far—document, document, document!

To recap, you must have:

  • Established workplace code of conduct
  • Established disciplinary policy and procedure
  • Documentation on steps taken
  • Well-trained employees

Secret 2: It’s crucial to have a real termination process and procedure in place to keep things fair and consistent. The last thing you want is to take actions that lead to discrimination claims and unlawful termination claims. When everyone on your staff follows the same exact procedures and policies, then you have the confidence in knowing you are treating everyone the same.

Be sure to exhaust all steps within your termination plan—and make sure one step is complete before moving on to the next step. If it doesn’t come down to actual termination of an employee, do it later in the day when a lot of employees have left in order to reduce the drama. Have a formal termination meeting where you request the presence of an HR person or other staff member to witness what unfolds, and again be sure to document.

Secret 3: Post-termination action steps must be solid in order for the business to function properly following the termination. This is especially important for small business because there is less wiggle room.

Take the following three steps to help make any transition quick and easy so you can get back to business.

  • Notify payroll and insurance providers
  • File paperwork and records
  • Retrieve all company materials and company access from the former employee

The off-boarding process is critical. Make sure you have a final termination packet, which includes a checklist and exit interview so that you can get feedback and a pulse on where that employee’s mind is. Check for red flags.

A good procedure will include:

  • A detailed process for both voluntary and involuntary termination: Addressing what happens when an employee passes away. What is different if the person resigns versus being fired?
  • Extensive documentation that was compiled along the way.
  • Next steps: employee final paycheck, health insurance, etc

Be proactive instead of just reactive; take the time to focus on putting together the right policy and procedure in place proactively and the situation will help itself. Apply it in a fair and consistent manner, and make sure your procedure applies with state laws. BIG HR can help you handle HR issues effectively with its comprehensive toolkits for clients.

To watch this webinar in its entirety, check out the video below: 

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  • Next up: How to Implement an Effective Discipline Policy in 5 Easy Steps
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  • How to Implement an Effective Discipline Policy in 5 Easy Steps

    Be prepared to stop negative employee behavior in its tracks. Establish the right policies and procedures to handle employee discipline before it’s too late.

    If you have even one employee then you will have to deal with HR issues. Read on for some key tools, tips and secrets to addressing employee discipline and sleep better at night knowing your business isn’t being held hostage by a few bad apples.

    In a recent COSE WebEd Series Webinar, Cheryl Perez, founder and president of BIG-HR, discussed steps to take when an issue needing employee discipline arises in your company.

    Have you ever been in a situation where:

    • You are worrying about a few poor performing employees?
    • You are being taken advantage of by employees who are always calling off, running late or performing poorly?
    • You are concerned that an employee might retaliate?
    • You are wondering if a disgruntled employee could negatively impact your business?

    Make sure you act fast enough to correct the negative behavior; give yourself the confidence of knowing you’re handling everything right and in the best interest of your business. Follow these five steps.

    Step. 1. Set up your workplace rules of conduct. This should be an important feature inside your employee manual. Employees must know they have fair and reasonable notice of expectations. The number one mistake of small to mid-size businesses is they don’t have an effective manual in place or they don’t provide employees with it except on the first day of orientation. And often times it’s not kept up to date. Company rules should be clearly communicated in writing to all employees, must be compliant with state and federal laws, and must be consistently enforced.

    Rules of conduct within the manual should include day-to-day matters—such as tardiness, attendance and dress code—and more serious matters—such as violence, theft and harassment.

    Perez provided the following tips for your employee manual:

    • Customize it so you communicate exactly what you’re looking for.
    • Communicate your policies clearly and through a formalized training process, preferably on a yearly basis. Review the manual with your entire staff at the beginning of the year. Walk your team through the rules, making sure they have a clear understanding and sign off on it.
    • Meet with your managers separately to communicate the rules so you know they are enforcing your expectations.

    And she recommended that it includes information on the following basic policies:

    • Employment-at-will
    • Family medical leave
    • Discrimination
    • Drug-free workplace
    • Social media
    • Political neutrality
    • Disciplinary

    Step 2. Establish an investigation procedure. This lets people know you are fair and you are looking into any issues that arise at your company. This is especially good for more serious allegations such as harassment, being under the influence, theft, etc.

    If an allegation is brought up against an employee, it should be promptly, fairly and thoroughly investigated. Once the investigation is conducted and you have all information, you then need to make an independent determination of facts and circumstances.

    Before you find yourself in a position where you need to conduct an investigation, it is important that you establish protocol. Determine who will conduct the investigation, what process will be used and within what timeframe. Communicate this in advance to everybody on your staff.

    Step 3. Understand what an effective progressive action policy looks like. Here is a rundown of the order in which Cheryl recommends taking action.

    • Counseling: “You’ve been late, don’t let it happen again.”
    • Verbal warning: Sit down and give them a formal verbal warning. Let them know what will happen next. Document it, but informally.
    • Written warning #1: Write it up and have another manager or witness sign off on it.
    • Written warning #2: Do everything in the first written warning, but also include a performance improvement plan.
    • Next courses of action

    As mentioned in the fourth bullet above, a performance improvement plan can be an important part in taking disciplinary action. Let the employee know that if they don’t follow these expectations then you will move to the next step in the disciplinary process. Spell out the expectations and be sure to give them the opportunity to fix the behavior.

    Step 4. Provide employees with the opportunity to appeal. Your policies and procedures regarding employee discipline should include having in place a grievance and appeal process. Doing so makes it clear that your business practices fair discipline and that employees are given the opportunity to appeal decisions. Showing your due diligence and giving them the chance to say why they don’t agree helps to clearly communicates fairness.

    Step 5. Determine the next course of action and how to implement it. When you hand out a punishment for a crime, make sure it’s appropriate. Consider the following options:

    • Transfer the employee to a different department or office to get them out of whatever the situation is that is impeding their performance.
    • Demote the employee.
    • Tell them they don’t get pay increases, bonuses, etc.
    • Suspend them with or without pay.
    • Terminate the employee.

    The key is to always apply discipline in a fair and consistent manner. Your managers and supervisors must follow the same guidelines. You can’t be fair and consistent as a business owner but then have a supervisor who is showing favoritism. And, be sure that discipline procedures comply with federal and state laws.

    Put it in writing

    One of the best things you can do during an employee disciplinary process is to document everything. BIG-HR provides its clients with templates and forms for everything they need for proper record keeping.

    What happens if you don’t document? You won’t have a leg to stand on. If you do end up with an accusation against an employee you won’t be able to defend yourself. If you’ve done a good job protecting yourself, communicating and documenting, then there is much less of a chance that you and your company will have to settle with the employee no matter what type of situation arises.

    To watch a full replay of this webinar, check out the video below. And Be sure to register for the next COSE WebEd Series Webinar on February 20, Using Video to Amplify Your Marketing and Drive Results

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  • Next up: How to Maximize the My Health Plan Experience: Presented by Medical Mutual
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  • How to Maximize the My Health Plan Experience: Presented by Medical Mutual


    If you have a health plan though Medical Mutual, make sure you register for a My Health Plan account. Here are three tips on how to get the most out of your My Health Plan experience:                                                                              

    Take the Health Assessment

    The Health Assessment is a series of questions about total health covering emotional, social, financial and spiritual wellbeing. Your employees will receive a wellbeing score and steps for supporting or improving it. Employees should come prepared to take the assessment with recent medical data including height, weight, blood pressure, total cholesterol, HDL, LDL, triglycerides and blood glucose.

    Utilize the Health Resource Center

    The Health Resource Center offers extensive educational materials and interactive tools to help your employees gain great insight into their health concerns and conditions.

    Save Money with My Care Compare

    My Care Compare is an online tool that allows Medical Mutual members to compare costs before they get care. This information can be especially helpful for planning out-of-pocket costs if your employees are on a high deductible health plan. This also allows members to get medical procedure, service or treatment costs by provider and service location.

    To register or log in to My Health Plan, please visit These helpful tools can also be accessed through the free Medical Mutual mobile app in the Apple app store or Google Play (search for MedMutual).

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  • Next up: HR Audits: When to Do Them and What to Look For
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  • HR Audits: When to Do Them and What to Look For

    There’s a lot for small businesses to stay on top of as it relates to HR. That’s why an annual audit, perhaps coupled with semiannual mini audits, are so important to ensuring a business is in compliance with applicable laws. Here’s when you should be performing these audits and what you should be looking for.

    As a business leader, I’m sure at some point you’ve asked yourself the question of whether you should conduct an HR audit. With HR having so many different components that are integral to the success of a company, there’s good reason to ask yourself whether your HR practices are as good as they could be.

    From compliance, to health and safety, training and development, recruiting and retention, compensation and benefits, there’s a ton to stay on top of!

    HR Audits can help a company understand the impact its HR practices are having on the organization and help quantify results as well as set the stage for necessary changes.

    While there is a lot to look over, particularly for small businesses, the potential of noncompliance with applicable laws is a significant risk. In this article, we’ll explore when HR audits should be conducted, what to audit, and how they can positively affect the organization overall.

    When to audit

    It’s best to do a full-scale audit once a year at most, given the resources required to perform them. That said, mini-audits conducted throughout the year can be valuable. Given every six months, these mini audits can provide for some level of course correction without too much departmental pain. Company leaders might also want to think about performing an audit following any significant event in the company’s history, such as management changes.

    What to audit

    Consider the weaknesses you’re aware of as it relates to your HR as well as what your available resources are. This should help guide your thinking as to what to audit. Keep a running log of issues that pop up throughout the year that might not be covered by your company’s policies and procedures. This will also help you identify areas you will want to address during your annual review process (or immediately, if need be.)

    Some common areas companies focus on during the HR audit review include issues related to hiring, performance management, discipline or termination.

    Other areas to think about include:

    • Misclassification of exempt and nonexempt jobs: The complexity of wage and hour laws and regulations means that almost every company has job positions that have been misclassified at some point in time. This could expose your business to liability for past overtime.
    • Inadequate personnel files: Reviews of personnel files often find things such as informal, vague or inconsistent disciplinary warnings; ambiguous, inaccurate or outdated performance evaluations; personal health information mixed into these files instead of being kept separate; and more.
    • Prohibited attendance policies: Just as it is with the misclassification of exempt and nonexempt jobs, the complexity of family and medical leave laws can also be difficult for companies to remain in compliance. The records generated by your system are your primary means of defense against wage and hour claims, so time-keeping policies and practices must be clearly communicated and consistently administered.
    • Form I-9 errors: Additionally, inadequate documentation is found around hiring practices, such as missing or incomplete Forms I-9. Employers face fines of between $100 to $1,000 for each failure to accurately complete a Form I-9.

    Kellee Perez is an account Executive at Benefit Innovations Group specializing in analyzing and implementing HR services within small and large businesses.

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  • Next up: I-9 Employment Eligibility Verification and Best Practices for Ohio Businesses
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  • I-9 Employment Eligibility Verification and Best Practices for Ohio Businesses

    Form I-9 is one of the more important employment documents that business owners must manage throughout the year. Here's what you need to know.


    Business owners face a seemingly bottomless pile of government paperwork related to licensing, taxes and employees. Yet however tedious that paperwork may be, it is crucial to understand the purpose of each form and ensure you complete it correctly.

    Form I-9 is one of the more important employment documents that business owners must manage throughout the year. Employers are required to submit this form to the Department of Homeland Security (DHS) to verify the identities of their employees, and to ensure those employees can legally work in the United States. Failure to correctly complete, submit and maintain your employee I-9s can mean severe federal noncompliance penalties. 

    Here are seven essential tips for completing the I-9 form and avoiding mistakes that can lead to audits. 

    1. Always Use the Latest Form I-9 
    The first thing to know is that all of your employees must complete the I-9 documentation. The form they fill out must be the latest version provided on the U.S. Citizen and Immigration Services (USCIS) website. Failing to use the correct edition or form could lead to a Notice Of Inspection (NOI) audit. One or more of the federal agencies that rely on these documents will conduct the review.  

    Though you may not have to fill out this document for independent contractors, remember that it's always illegal to contract knowingly with persons who don't have authorization to work in the U.S. 

    2. Complete the I-9 Promptly
    Submission deadlines are strict. The I-9 should be submitted as soon as the employee has accepted the job offer or, at the latest, on their first day of work. As their employer, you have only three business days to receive documentation that verifies their identity. Eligible documentation usually consists of an original birth certificate, social security card, passport, visa, or other government-issued documents. Delay to submit the documentation can trigger a compliance issue, causing an NOI.

    3. Know How to Examine the I-9 Accurately
    As an employer, you are responsible for completing Section 2 of an employee's I-9 by the third business day from the date of hire. While you have no control over what documentation your new team member will submit for verification, you do need to check that their documents are original and on the list of acceptable forms. 

    RELATED: Read more by Alex Gertsburg.

    Examine each of these documents and determine whether they seem genuine and match the employee's details on the completed form. If you feel these criteria are not satisfied, you can reject their documents and ask for another approved form of identification. To determine the validity of a submitted form of identification, you can use this helpful guide provided by the USCIS.

    4. When Employees Leave the Company, Hold onto Their I-9 
    Among the more confusing aspects of Form I-9 are the strict rules for retaining and destroying the documentation. Many employers assume they can immediately shred or delete the I-9 when an employee leaves the company. This is a mistake. Federal law has strict procedures for maintaining and for clearing out these forms. When employment has ended, you should hold onto their I-9 for:

    three years after their date of hire, or
    one year from the date of their departure 

    —whichever is longer. Employers who maintain the physical I-9 paperwork should hold onto the original document, as photocopies are invalid. Alternatively, you can opt to go green by scanning the original and uploading it for electronic retention. Once you have the digital version stored securely in your database, you can destroy the original paper document.

    5. Prepare for an Audit Even When Compliant 
    There are countless reasons an I-9 audit can happen, from disgruntled employees to mistakes on submitted paperwork. No matter the cause, you do not want to be caught unprepared for an audit. Some industries are more susceptible to closer scrutiny by USCIS and the other agencies that monitor work eligibility. These include:

    Processing plants

    Regardless of your industry, your best means of surviving a potential audit is to ensure that your business follows Form I-9 regulations to the letter. 

    RELATED: 10 ways to avoid immigration problems with employees.

    6. A Note About COVID-19 I-9 Verification Flexibility 
    The COVID-19 pandemic forced the USCIS to temporarily relax Form I-9 processing requirements. Employers and their employees can now complete their eligibility verification remotely and conduct physical document inspections once in-person operations have resumed. Applying only to companies operating 100% remotely, the exception expires on August 31, 2021. 

    7. Prevent the Preventable
    One of the best ways to avoid NOI audits, and potential fines and sanctions, is to develop an I-9 compliance process to prevent avoidable errors—from incomplete information to unverified documentation. Don't rush through the I-9 process or assume your business is too small to be noticed by federal immigration agencies. The only way to remain compliant with employment eligibility verification laws is to make a conscientious effort to complete and submit this documentation properly.

    Alex Gertsburg is managing partner at Gertsburg Licata and is a board member of COSE and Greater Cleveland Partnership. He can be reached at or by phone at (216) 573-6000.

    Please contact Gertsburg Licata, home of CoverMySix®, for more information about our anti-litigation audit services, including an assessment of your hiring and employment policies, procedures, and documents. We help you through the legal challenges facing your business so that you can focus on making it grow. 

    We invite you to call 216-573-6000 or fill out our contact form for a complimentary* consultation with one of our attorneys.

    *Complimentary CoverMySix® consultation calls are exclusive to COSE members. 

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  • Next up: Important Update from Ohio BWC!
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  • Important Update from Ohio BWC!

    The deadline for your company’s payroll true-up reports was originally Aug. 15. However, because this is a new process, the Ohio BWC has extended a grace period until Sept. 29 to ensure all employers are able to complete this requirement.

    The deadline for your company’s payroll true-up reports was originally Aug. 15. However, because this is a new process, the Ohio BWC has extended a grace period until Sept. 29 to ensure all employers are able to complete this requirement.

    With the transition to prospective billing, Ohio BWC now requires employers to reconcile their actual payroll for the prior policy year and reconcile any differences in premium paid. The payroll true-up allows Ohio BWC to calculate your premium accurately. Even if your payroll for the year matches the estimate, Ohio BWC provided, or you had zero payroll, you must complete a true-up report.

    The quickest and easiest way to true-up is online with a BWC e-account. If you do not have a BWC e-account, you can create one at Online true-up and payment will also save you money. Eligible employers will qualify for a 1-percent premium rebate, up to a $2,000 maximum rebate. While you can complete the true-up through the BWC call center, wait times may be extremely high. Therefore, Ohio BWC suggests you file your payroll true-up with a BWC e-account.

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