More often than not, our practice gets calls from our clients regarding employee termination issues. The questions usually sound something like this:

• "I would like to fire this employee because..."

• he or she has been stealing;

• he or she has a poor attitude;

• he or she is a poor performer;

• or any assortment of reasons; and,

• "How do I do it without being sued?"

The truth is you can not always avoid being sued by a fired employee. However, you can take the proper steps to ensure that you are prepared to defend any suit the employee may bring. The key to successful employment litigation is preparation.

It is much easier to defend an employer who, when faced with a wrongful termination suit, can open an employee's personnel file, and find the exact reason why the employee was fired and point to 2 or 3 incidents that led to the employee's termination. The employer who merely says, "The employee was terrible and we fired him," will find defending a lawsuit more difficult.

In New York, an employer can fire any employee for any reason, provided the reason is not unlawful. Unlawful reasons for terminating the employment relationship can be ~ race, disability, retaliation for certain actions and a host of many others. You may be hard pressed to think how these unlawful reasons apply to the employee you wish to fire, but you can be sure, if the employee wants to sue you, they will think of a dozen unlawful reasons why they were fired.

Before you make the decision to terminate the employment of one of your workers, make sure of three things:

• You know who you are firing. Is that person in a protected class (minority, disabled, female, over forty)? If they are in a protected class, you need to make doubly sure they are being fired for a lawful reason and the reasons are documented.

• Know why you are firing this employee. If you are firing an employee because of lousy work performance, you must tell them that is the reason. Don't tell them business is slow and you are laying them off. If you do, they will expect to be rehired when business picks up.

• Be able to support your reason for firing an employee. If you are firing an employee for lateness, there should be a record of lateness in that employee's file. Same thing for disciplinary reasons, poor performance, poor attitude, etc. It is not enough to say, "I know the employee came in late," and not have an accurate record of the employee's attendance. The personnel file should have the employee's attendance record, memos to the employee about absences, warnings to the employee about absences and any disciplines that may have been assessed against the employee.

When making the decision to fire an employee, it is always helpful to take a step back and look at the whole picture. If an employee has done something to shock the conscience of the employer, suspend that employee without pay and investigate. You can always change a suspension into a dismissal. Firings should not be done on the spur of a moment, but should follow a clear outline of events. This ensures the employer is in the best possible position to defend the lawsuit of a fired employee.