Confrontation with a poor performer is never fun. But the longer you wait, the more damage that bad employee will do to your business.
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Firing someone sucks. There’s no way around it. But as an entrepreneur, it’s not a matter of if you’ll have to do it; it’s when.
You pour your heart and soul into finding the right person, and you think you’ve nailed it. Then, reality hits. The star candidate who wowed you in the interview? Maybe they’re not so shiny when they actually start working. Perhaps they’re just not cutting it performance-wise, or maybe they’re bringing a toxic attitude that’s dragging everyone else down.
Here’s where a lot of entrepreneurs get stuck: they know they need to fire the person, but they keep putting it off. They may be worried about the hassle of hiring and training someone new, or they’re afraid of conflict. Confrontation with a poor performer is never fun. But the longer you wait, the more damage that bad employee will do to your business.
Ripping Off the Band-Aid
Time and time again, I’ve seen entrepreneurs hang on to their people far longer than they should. I get it. It can be overwhelming to think about getting someone new up to speed and spending significant time training them to replace a less-than-stellar employee. Our brain defaults to “better the devil you know than the devil you don’t.” If you want your company to truly be successful, you have to flip that switch.
We may think we can’t off-board toxic employees quickly because of the systems, processes, and clients we have in place. It could feel like firing that person would be far more damaging to our companies than just keeping them on, so we suffer. But those troublesome employees create wakes of issues around them. Firing toxic people is always the right decision. Afterward, that decision is met with open arms, even by the people who have had to take on the fired person’s work. Toxic employees cause that much damage internally.
There are a lot of people out there who have a deep aversion to conflict and will pussyfoot around to avoid arousing emotions with a subpar employee. The challenge with not nipping attitudes in the bud as soon as possible is that the employee gets comfortable with expressing themselves inappropriately because no one is policing them.
When you finally address the offending issues, the employee’s reaction might be akin to giving a cat a bath: they have their claws out and ready to scratch the hell out of you. In cases like those, you may run the risk of the employee filing a wrongful termination suit because you or a manager weren’t direct in giving negative feedback.
To Fire or Not to Fire
“It’s not if you get sued; it’s when you get sued.”
If you’re an entrepreneur or a business owner, you’ve probably heard this saying. Unfortunately, it’s true.
We often get asked what requirements exist regarding keeping employees. Fortunately, forty-nine out of fifty states are at-will employment states1. This means that as long as you aren’t in Montana, you can terminate anyone at any time for any legal reasons. For the rest of the forty-nine states, if someone you employ ends up being a jerk, you can fire them posthaste.
What you can’t do is target any reason that could be deemed discriminatory or illegal. Here is a pretty simple, black-and-white chart of legal and illegal reasons to let someone go. If you’re dealing with something you believe is in the gray, do not hesitate to get in touch with an attorney.
Knowing why you can and can’t fire someone is critical.
Kate Morgan
I’ll say it once again: the businessing part of business is easy; it’s the peopling part that’s hard. No joke, it is probably the hardest thing. People are wonderfully complex: sometimes triggered, sometimes gracious, sometimes unnerving. But whether you work through issues with a PIP and your employee or you fire them, you will, without a doubt, grow from the experience.
1. “Fast Facts About the At-Will Employment Doctrine,” Thomson Reuters, October 25, 2024, https://legal.thomsonreuters.com/en/insights/articles/at-will-employment-doctrine.
2. US Equal Employment Opportunity Commission, “Prohibited Employment Policies/Practices,” accessed December 15, 2024, https://www.eeoc.gov/prohibited-employment-policiespractices.
3. Bostock v. Clayton County, 590 US 23 (2020).
4. Equal Employment Opportunity Commission Guidance, “An employer has the right to terminate an employee for lack of performance, provided it does not violate anti-discrimination laws.”
5. US Equal Employment Opportunity Commission, “Title VII of the Civil Rights Act of 1964,” accessed December 15, 2024, https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964.
6. US Department of Labor, “Employers can enforce attendance policies as long as they comply with the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA).”
7. US Department of Labor, “Whistleblower Protection Program,” accessed December 15, 2024, https://www.whistleblowers.gov.
8. Americans with Disabilities Act, 42 U.S.C. § 12114, “Termination for substance abuse must comply with ADA protections, as addiction may qualify as a disability under certain circumstances.”
9. US Equal Employment Opportunity Commission, “Pregnancy Discrimination,” accessed December 15, 2024, https://www.eeoc.gov/pregnancy-discrimination.
10. Society for Human Resources Management guidelines on employee fraud, “Falsifying company records is a valid cause for termination as it undermines trust and operational integrity.”
11. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990).
12. National Business Ethics Survey, “Employers may terminate employees who misuse company resources in ways that violate documented policies.”
13. Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (1993).
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